What is delimitation and why is it needed?
Delimitation is the “act or process of fixing limits or boundaries of territorial constituencies in a country or a province (State or Union Territory) having a legislative body.” or an act of redrawing boundaries of an Assembly or Lok Sabha seat to represent changes in population over time. The process may also entail a change in the number of Lok Sabha seats allotted to different States, as well as in the number of Legislative Assembly seats for each State. This exercise is carried out by a Delimitation Commission, whose orders have the force of law. The objective is to redraw boundaries (based on the data of the last Census) in a way so that the population of all seats, as far as practicable, be the same throughout the State. Aside from changing the limits of a Constituency, the process may result in change in the number of seats in a State.
In India, such Delimitation Commissions have been constituted four times — in 1952 under the Delimitation Commission Act, 1952, in 1963 under Delimitation Commission Act, 1962, in 1973 under Delimitation Act, 1972 and in 2002 under Delimitation Act, 2002,” according to the EC Website.
To carry out the exercise in Jammu & Kashmir in the aftermath of its special status revocation, a Delimitation Commission was set up on 06th March, 2020. The Commission is headed by Justice (Retd.) Ranjana Prakash Desai, and includes an Election Commissioner along-with the State Election Commissioner, as well as five associate members for J&K.
Despite a freeze brought in by the Government of then Chief Minister Farooq Abdullah both in the State Assembly as well as in the Supreme Court in 2002 on such process till 2026, the J&K Delimitation Commission came into existence and is mandated to delimit the constituencies of the Union Territory “in accordance with the provisions of Part V of the Jammu & Kashmir Reorganisation Act, 2019 (34 of 2019) and the provisions of the Delimitation Act, 2002 (33 of 2002).”
How often has delimitation been carried out in J&K?
Delimitation exercises in J&K in the past have been slightly different from those in the rest of the country because of the region’s special status — which was scrapped by the Centre in August 2019. Until then, 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 & Kashmir Constitution and Jammu & Kashmir Representation of the People Act, 1957.
Assembly seats in J&K were delimited in 1963, 1973 and 1995. The last exercise was conducted by the Justice (Retired) K. K. Gupta Commission when the State was under President’s Rule and was based on the 1981 Census, which formed the basis of the State elections in 1996. There was no Census in the State in 1991 and no Delimitation Commission was set up by the State Government after the 2001 Census as the J&K Assembly passed a law putting a freeze on the fresh delimitation of seats until 2026. This freeze was upheld by the Supreme Court. The J&K Assembly, at that time, had 87 seats — 46 in Kashmir, 37 in Jammu and 4 in Ladakh. Twenty-four more seats are reserved for Pakistan-occupied Kashmir. The freeze, some political parties argue, has created inequity for Jammu region.
The tale of Kashmir’s total domination over the State’s politics and economy began in 1951. That year, Valley-Centric Wazir-e-Azam, Sheikh Abdullah, de-linked Jammu & Kashmir from the Census operations conducted that year throughout the country, ignored the 1941 Census Report as well as the sea change undergone in the State’s demographic landscape owing to the migration of over one lakh Hindus and Sikhs from the Pakistan-Occupied-Jammu & Kashmir (PoJK) as also the migration of Hindus and Sikhs from Kashmir to Jammu and delimited the Constituencies for the Legislative Assembly in an irrational manner. All this was done to give 43 seats to Kashmir – which had a land area of 15, 953 Sq. km. (15.73%) and less than half of the State’s population, 30 to Jammu with an area of 26, 293 Sq. km. (25.93%) and the population more than Kashmir and a paltry 2 to the trans-Himalayan Ladakh with a land area of 59, 146 Sq. km. (58.3%) in a House of 100. The remaining 25 seats remained reserved for the people of PoJK as per Section 47 of the Jammu & Kashmir Constitution. Jammu did protest against this undemocratic machination, but with no result.
In 1961, however, Jammu got an opportunity to convince the authorities of its claim to due representation in the Assembly, based on population, area and nature of the terrain (geographical conditions and accessibility). Section 4 (2) of the Jammu & Kashmir Representation of the Peoples Act, 1957, envisages the above three criteria for the delimitation of Constituencies and provides that “a co-relation” has to be maintained “between the ratio of population of each Constituency and the number of seats allotted” (J&K Representation of Peoples Act 1957). The opportunity was provided by the Census of 1961 conducted in Jammu & Kashmir along with the rest of India after a gap of 20 years.
As per the 1961 Census, Jammu’s population was 16 lakh and that of Kashmir 18 lakh. But the Valley leadership contrived to retain 12 seats more than those of Jammu which obviously meant that just 2 lakh Kashmiris were given the right to elect 12 legislators. This excessive share of representation given to Kashmir, as also the unjust and humiliating distinctions made between them and non-Kashmiris was enough to exasperate Jammu which launched a struggle demanding that the position of the people of Jammu in the structure of the Government must commensurate with their numerical strength. But nothing came out. The Delimitation Commission, on its part, did try to placate Jammu when in 1966 it offered one seat in the form of a crumb (Report of Delimitation Commission, 1966).
The Census of 1973 had put the Valley’s population at 24, 35, 701 and that of Jammu at 20, 75, 640. But the third Jammu & Kashmir Delimitation Commission, like the earlier Delimitation Commissions, violated the Representation of Peoples Act and allowed the people of Kashmir to elect 42 representatives to the Legislative Assembly at the rate of one per 57, 992 persons, while the people of Jammu were empowered to return 31 legislators at the rate of one per 66, 956 persons.
This was enough to provoke a sort of furore as the people of Jammu construed the recommendations of the Delimitation Commission as an affront to their self-respect, as also as an onslaught on democracy. The consequence of the protests in Jammu was that Sheikh Abdullah created an additional seat for its people by increasing the number of Assembly seats from 75 to 76. However, this gesture of Sheikh Abdullah could not conciliate the people of Jammu. As a matter of fact, they made it clear that they would continue their struggle till they obtained representation in the Assembly in proportion to their population and a few more seats on the basis of area, nature of terrain and state of a communication network.
That even the 1981 Census, which had put Jammu’s population at 27, 18, 113 and that of Kashmir at 31, 34, 904, didn’t bring any relief to the former. It can be seen from the fact that it returned 32 Legislators during the 1983 and 1987 Assembly Elections at the rate of one per 84, 941 persons. On the contrary, Kashmir elected 42 Legislators during these elections at the rate of one per 74, 640 persons.
Sheikh Abdullah did appoint a Commission in 1981 with Justice Janaki Nath Wazir as its Chairman to redraw the boundaries of the Assembly segments. But he could not delimit the Constituencies as he passed away in 1983. Thereafter, the task of delimiting the Constituencies devolved upon Justice Mian Jalal-ud-Din, who functioned as the Chairman of the Delimitation Commission till September 1991. In between, three highly significant developments took place which gave an additional stimulus to the ongoing controversy over the number of seats the people of Kashmir and Jammu deserved in the Legislative Assembly. First, in their communication to the Chief Minister, Farooq Abdullah, sent in 1986, the Delimitation Commission members, including Justice Jalal-ud-Din, Peri Shastri, Chief Election Commissioner of India, and Justice K. K. Gupta, emphasized the “urgent need of more representation to the people of the far-flung areas of Jammu and Ladakh”.
The other was the amendment to the State Constitution in 1987, which enhanced the number of Constituencies from 76 to 87.
And, thirdly, Jammu & Kashmir were again excluded from the 1991 Census operations which covered the whole country, including the terrorist-infested Punjab and Assam at the behest of certain “vested interests” in the Valley, who argued that “in the present atmosphere created by the terrorists, Census operations were impossible”.
Notwithstanding the exclusion of Jammu & Kashmir from the Census operations in 1991, the people of Jammu took the first two developments to mean that Justice Jalal-ud-Din would compensate the losses they had suffered at the hands of the successive Delimitation Commissions and State Governments. But their high hopes did not materialize. For, the Delimitation Commission once again ignored the criteria laid down by the Representation of the Peoples Act and recommended 46 seats for Kashmir – which had a highly developed communication system and a population equal to Jammu – 37 for Jammu – which had a large number of far-flung areas with extremely difficult terrain and poor and inadequate road facilities – and four for Cold-Desert Ladakh. The State Government accepted these recommendations and issued a Notification to this effect on April 04, 1991. All this happened during President Rule. (Between January 19, 1990, and October 09, 1996, Jammu & Kashmir remained under the Governor’s Rule and President’s Rule.)
Enraged, the people of Jammu launched a struggle to seek withdrawal of the April 04, 1991 Notification and compel the authorities to redraw the Assembly Constituencies de-novo strictly in accordance with the requirements of the Representation of the Peoples Act. This movement was so strong that the State Government had to yield and request the Delimitation Commission to review its report. The Delimitation Commission, in the words of none other than Justice K. K. Gupta did acknowledge that “Jammu deserved seven of the eleven newly-created seats on the basis of population alone”. But the Delimitation Commission could make no alteration in its report owing to the “stiff opposition” of the non-official members like Jamaat-e-Islami legislator Syed Ali Shah Geelani, the National Conference legislators like Ata Ullah Suhrawardy, and an independent legislator”.
The controversy between the official and non-official members, it is believed, led to the resignation of Justice Jalal-ud-Din in September 1991 and the appointment of Justice K. K. Gupta as Chairman of the Delimitation Commission. Justice Gupta also, like Justice Jalal-ud-Din, failed to dispense Justice to the people of Jammu owing to the “adamancy” of the non-official members from the Valley and in his helplessness submitted the Justice Jalal-ud-Din Report on September 05, 1992, in original shape.
It was under these circumstances that the people of Jammu denounced the Delimitation Commission’s Report as “highly irrational and politically motivated” and organized a massive 48-hour bandh on October 28 and 29, 1992. The Chief Election Commissioner of India, T. N. Seshan, was more severe in his criticism of the report. In fact, he dismissed it as a “deceitful, fraudulent” document, a fraud on the Constitution and declared the Delimitation Commission’s recommendations null and void. So much so, he told the State Governor, General K. V. Krishna Rao, that “it is a waste of time” to argue with him and that “all correspondence from the State (J&K) relating to election issue will be ignored”. Besides, he wrote to Prime Minister P. V. Narasimha Rao that unless the delimitation is started de-novo and completed, no election whatsoever will be possible to the Jammu & Kashmir Legislative Assembly”.
The criticism of the people of Jammu against the Delimitation Commission’s Report and Seshan’s view compelled the State Government to ask Justice K. K. Gupta to start the delimitation afresh. He started his work in August 1994 and submitted his Report on April 27, 1995, but without affecting any modification whatsoever for reasons best known to him. The State Government accepted his report in its entirety the same day (The Jammu & Kashmir Government Gazette (Extraordinary), April 27, 1995). Surprisingly, Seshan also accepted the report, saying that “Justice K. K. Gupta report is well-balanced and flawless”. This change in attitude on his part dumb-founded the people of Jammu and the Assembly Elections in Jammu & Kashmir were held in September 1996 as per the recommendations of Justice K. K. Gupta.
It may sound ludicrous, but it is hard fact that even Justice K. K. Gupta had admitted that “gross injustice has been done to Jammu” and that he strongly urged the State Government on April 27, 1995, to approach the President of India and get the Jammu & Kashmir Constitution amended to “increase the share of Jammu from 37 to at least 40 seats”. All this suggests that Kashmir has an excessive and unfairly preponderant share of representation both in the Jammu & Kashmir Legislative Assembly since 1951 and the Lok Sabha since 1967.
Why does the J&K Delimitation exercise is deceitful, fraudulent?
Under the Jammu & Kashmir Re-organization Act, 2019, based on 2011 Census, the number of constituencies in the Union Territory are to be raised from 107 to 114. But this also takes into account the 24 seats falling under Pakistan-Occupied Kashmir (PoK). Excluding these 24, the effective strength of the Assembly would become 90 as compared to 83 earlier.
Delimitation on the basis of Census 2011 conducted in the erstwhile State of Jammu & Kashmir is the latest policy flaw from the Central Government. There is enough evidence that Censuses in Jammu & Kashmir State have been ridden with fraudulent processes since 1961, and the Census of 2011 surmounts them all. These manipulated Censuses have had direct impact on Jammu Region leading to the subjugation of its Hindu population.
According to the 2011 Census, the average population growth of Jammu Province which was 31 per cent between 1971 and 2001 dropped to 21 per cent in 2011. Due to migration within and outside the state on account of Hindu and Sikh genocide in Kashmir, the percentage growth in Kashmir’s population should have been lower but it grew by 26 per cent post 1991. This is as per official data, fudged obviously.
The fraud and fudged Census in J&K has always been a conspiracy against Jammu hatched by the successive Central Governments in active connivance with the Kashmiri power centres and it was only because of the fudged Census that Kashmir’s population was falsely shown to have increased by 14, 11, 000 in 10 years from 2001 to 2011 whereas the average population growth of Jammu Province which was 31 percent between 1971- 2001 dropped to 21 percent in 2011. Due to migration within and outside the State on account of Hindu and Sikh genocide in Kashmir, the percentage growth in Kashmir’s population should have been lower but it grew by 26 percent post 1991; and population of Muslims as a percentage of total population increased by 4.12 percent whilst that of Hindus and Sikhs fell by 4.27 percent.
The decision of Government of India to conduct new delimitation of Legislative Constituencies on the basis of fraudulent 2011 Census is a betrayal of national interests in J&K. It is a naked conspiracy to defeat the very purpose of neutralization of Article 370 of Constitution of India and reorganizing the erstwhile State into two Union Territories. Delimitation on the basis of 2011 Census will only consolidate Muslim hegemony and perpetuate Jammu & Kashmir as a Muslim Domain apart from rest of India. That conducting delimitation of Assembly/ Parliamentary Constituencies on the basis of Census 2011 is the surest way to once again sell out Jammu and keep it hostage to fundamentalist Kashmiri hegemony.
It would be only appropriate if the Parliamentary and Assembly Constituencies in Jammu Province are redrawn on the basis of the criteria laid down in the Representation of the Peoples Act as well as on the basis of latest population in Jammu Province and Kashmir. Jammu would get at least 50 seats out of 90 territorial Constituencies into which the UT of Jammu & Kashmir will be divided by the new Delimitation Commission headed by Retired Supreme Court Judge Ranjana Desai. Jammu & Kashmir is under President’s Rule and the Union Government is competent to administer Justice to Jammu by conceding their 71-year-old genuine demand seeking proper representation in both Lok Sabha and Legislative Assembly. To delimit the Constituencies on the basis of the 2011 fudged Census figures would be only to once again perpetrate gross injustice on the people of Jammu Province.
The author is advocate as J&K High Court of Judicature, Jammu