Article 370 abrogation aftermath: Can elections be the panacea of all ills in Jammu and Kashmir?

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India Tomorrow

SRINAGAR—The Supreme Court verdict on Monday dealt a major blow to Jammu and Kashmir regional political parties after it upheld the abrogation of Article 370. 

However, the only consolation for the parties was that the apex court asked the Election Commission to hold the polls before September 30 next year. On statehood, the court has called for restoring it “at the earliest” without setting any timeframe.

Can the elections be the panacea of all ills in Jammu and Kashmir?

The legislature of Jammu and Kashmir Union Territory would be rudderless as Delhi or Puducherry. Unlike in the past, the chief minister in the UT will be subservient to the Lieutenant Governor (LG).

“There shall be a Council of Ministers consisting of not more than ten percent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions with matters concerning which the Legislative Assembly has the power to make laws except in so far as he is required by or under this Act to act in his discretion or by or under any law to exercise any judicial or quasi-judicial functions”, reads the Jammu and Kashmir Reorganisation Act, 2019.

The Lieutenant Governor shall, in the exercise of his functions, act in his discretion in a matter which falls outside the purview of the powers conferred on the Legislative Assembly or in which he is required by or under any law to act in his discretion or to exercise any judicial functions, and related to All India Services and Anti-Corruption Bureau

In such circumstances, the chief minister will be a dignified head of a bigger municipality with no sway over administration or bureaucracy. Former chief ministers, who had been all-powerful in the past will now be left with the power of spending money on development projects. 

J&K is not just an ordinary UT like Delhi. It determines the foreign policy of the country. There have been three wars. A large chunk of J&K is under the occupation of Pakistan. In such circumstances, it cannot be an ordinary state or UT.

Plus election is not that much a bigger issue given that the Lok Sabha polls are just around the corner. Had the EC gone ahead with the Lok Sabha elections and not the assembly, it would have sent a wrong signal.  There would have been questions about the EC’s intent. Now the SC has bailed out EC too. It will have to conduct both elections whether together or separately thus giving it a face-saving.

Much water has flown down the Jhelum since the abrogation of Article 370. Earlier this year, the Supreme Court dismissed a petition challenging the delimitation in Jammu and Kashmir.

A bench of Justice Sanjay Kishan Kaul and Justice A.S. Oka said the petitioners did not challenge the constitutional validity of a specific provision in the Jammu and Kashmir Reorganization Act.

Petitioners Haji Abdul Gani Khan and Dr. Mohammad Ayub Mattoo challenged the notification issued by the Centre in March 2020 establishing the Jammu and Kashmir Delimitation Commission. 

On March 6, 2020, the Centre constituted a three-panel headed by former Supreme Court Judge, Justice Ranjana Desai. Its two other members were the Chief Election Commissioner and J&K’s State Election Commissioner.

It was entrusted with the work of delimiting the Assembly and Parliamentary Constituencies in the UT of Jammu and Kashmir based on the 2011 Census and by the provisions of Part-V of the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019) and the provisions of Delimitation Act, 2002(33 of 2002). The Commission unveiled its final order on May 5, 2022, and allocated six additional seats to Jammu and one to Kashmir.  It also reserved nine seats for scheduled tribes — six in the Jammu region and three in Kashmir

Justice Oka said the notifications drew their power specifically from Section 62(2) of the 2019 Act. Section 62(2) provided for the readjustment of constituencies to be carried out by the Delimitation Commission.

The petitioners’ counsels had argued that only the Election Commission of India, under Section 60 of the 2019 Act, was empowered to conduct the delimitation exercise. They further argued that Article 170 of the Constitution barred delimitation exercises based on the 2011 census. 

The petitioners had alleged that Sections 60 and 61 of the 2019 Act, which define the role of the Election Commission in the process of delimitation of constituencies, were in contradiction to Section 62.

The government had argued that there were two alternative mechanisms to carry out delimitation for the Union Territory of Jammu and Kashmir. By Sections 60-61, while the power to determine delimitation was conferred on the Election Commission, Sections 62(2) and 62(3) conferred powers to carry out delimitation on the Delimitation Commission.

The number of seats in the Legislative Assembly of Jammu and Kashmir has gone up from 107 to 114, with nine seats reserved for Scheduled Tribes. Add to it three proposed seats for migrants and POK displaced persons, and the BJP’s political math is complete.

For the first time, nine Assembly Constituencies (ACs) have been reserved for the Scheduled Tribes, six of which are in the Jammu region and three in Kashmir. The constitution of the erstwhile Jammu and Kashmir state had no provision for the reservation of seats for Scheduled Tribes in the Legislative Assembly.

Delimitation exercises in J&K in the past have been slightly different from the rest of India because of J&K’s special status. Earlier the delimitation of Lok Sabha seats in J&K was governed by the Constitution of India, but the delimitation of the state’s assembly seats was governed by the Jammu and Kashmir Constitution and Jammu and Kashmir Representation of the People Act, 1957.

J&K Assembly had frozen the delimitation from 2001 to 2026. The decision was upheld by the Supreme Court. However, after scraping Article 370, the BJP ordered the formation of the Delimitation Commission and linked the restoration of statehood to Jammu and Kashmir with the completion of the exercise followed by elections. Delimitation in the past in J&K was done in 1963, 1973 and 1995 when the state was under President’s Rule.

Before Jammu and Kashmir were stripped of statehood, it had 87 seats in the assembly: 46 in Kashmir, 37 in Jammu, and four in Ladakh. J&K assembly also had 24 seats vacant for Pakistan-occupied Kashmir (PoK) on which elections were not held. 

According to the Census of 2011, Muslims in the former state constitute a majority with 68 percent. Kashmir accounts for 56.2 percent of the total population of 1.25 crores and Jammu 43.8 percent.

The seat share of Kashmir was 55.4 percent and Jammu’s 44.6 percent. When the draft proposal is implemented, Kashmir’s seat share will decrease to 52.2 percent while Jammu’s will rise to 47.8 percent.

A delimitation based on the last Census would have increased the seats in Kashmir to 51 and in Jammu to 39. The Commission proposal leaves an average population of 1.45 lakh per constituency in Kashmir and 1.25 lakh in Jammu. 

To overcome this imbalance, the Commission has adopted criteria rarely applied before. It has accorded primacy to hardships faced by the people in the Jammu border area due to treacherous terrain, remoteness, and shelling from Pakistan.  

After1981 census, a delimitation commission was set up in J&K under the chairmanship of Justice J N Wazir.  The Commission gave its final order in 1992, delimiting the total number of constituencies to 87 by increasing 11 seats.  In 1995, the report was implemented and five seats were increased in Jammu, four to Kashmir, and two to Ladakh. Nearly all SCs in Jammu and Kashmir are non-Muslims.

There are 15 Muslim majority seats in Jammu and their boundaries have been redrawn in a manner that they cease to be Muslim majority constituencies. It will reduce the representation of Muslims from Jammu in the assembly from districts like Doda, Kishtwar, Rajouri, Poonch, and parts of Banihal and Reasi.

Delimitation has been undertaken in Jammu and Kashmir when it doesn’t have an assembly to represent the people and the five associate members of the Commission do not have any voting rights.

Kashmir has a larger population than Jammu. But a large chunk of the area in Jammu falls in Muslim majority Pir Panjal and Chenab valley hill districts. In Jammu province, 15 of these constituencies are Muslim. Although Jammu province has a 62.5 percent Hindu population, they are concentrated around the Jammu-Samba-Kathua belt and parts of the Udhampur district.

With the new amendment, the BJP will be able to nominate its three members. Since LG is the Centre’s man, BJP will get three members without even a vote. Plus the reservation and redrawing of assemblies have been made in such a way that BJP could win a majority. 

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