Limits of J&K Delimitation Commission 

Members of the J&K Delimitation Commission at a presser in Jammu on July 9, 2021. [File Photo]

By Syed Tassadque Hussain

ON 21 October 1951, exactly 69 years ago, BJP’s foundation was laid when delegates from all over the country congregated in Delhi and formed the Bharatiya Jana Sangh. The formation of Jan Sangh put Kashmir and India on the parallel trajectory, unleashing the fury of centrifugal forces that gained momentum from the sorrow, pathos and social physiology of the majoritarian view point in Jammu and Kashmir. People realized that they should strive relentlessly for identity. 

On this date, the real Kashmir dispute was born. Kashmir felt it had come to crossroads in a trackless desert and the leader of revolt, late Sheikh Mohammad Abdullah did not know which path to choose. His dilemma was simultaneously scripting the destiny of the people of Kashmir. Many articles published in Kashmir Times pointed out that the rise of Hindutva in India provided guises for militancy in Kashmir, Pakistan was only an onlooker. Sheikh Abdullah was a show boy of Congress, and a political non-entity who was deified by the Brahmin lobby in All India Congress, so that Jawahar Lal Nehru could perpetuate his dynastic rule in India.  He (Sheikh), a poor soul, was like the flier of a rickety monoplane, caught in the cross winds of eddying political gale blowing in the Indian sub-continent and felt helpless, when he realized that his state and J&K National Conference were being drawn by forces to the epicenter of a destructive tornado.

He sought help from US diplomat Adlai Stevenson. These are post-partition events and should be construed in the light of March 29, 1951 statement of Sir Benegal Narsing Rau before the UN Security Council, that to quote his own precious words, “this opinion of the constituted assembly will not bind any government or prejudice of this counsel”. These words are gravid with great signification. These words inexorably provided 100% oxygen to centrifugal forces in Kashmir.

To stem the tide of rising dissentient voices in J&K, the tool of reorganization of the state J&K on 5th of August 2019 was used. Now, the Center wants to recognize the union territory of J&K by recreating the J&K state with legislature based on adult franchise but this will be done only after the demographic alteration of the Jammu region. So, six lakh refugees from West Pakistan became legal residents of Jammu division, because of their residence on 5th August 2019.

Hence, the logical consequence of this demarche of reorganization act is the creation of the J&K delimitation commission, which is illegally constituted. The commission is illegally constituted because as far back as the year 2007, the Supreme Court of India ruled that no retired judge of the High Court/ Supreme Court should be appointed to any administrative commission. These judicial dicta still hold the field. It stone walls any contrarian executive action. Hence, appointing Mrs. Ranjana P. Desai, a retired judge of the Supreme Court as the chairperson of the Commission is a sheer defiance of the Supreme Court under Article 142 of the Constitution. There are authorities of the Supreme Court of the United States that any executive action which ignores a judicial dicta is void ab initio. No court need declare the illegality, the illegality itself stultifies and destroys itself. So, appointment in this case is itself self destructive. What takes the cake is that the other member of this commission is a constitutional authority i.e., the Chief Election Commission of India.

Holding a delimitation of constituencies without census or based on a census held in 2011 is an egregious violation of the basic feature of the constitution

Additionally, in this backdrop, asking the delimitation commission to delimit the constituencies on the basis of a census held a decade back is an act of hallmarking an egregious illegality. Holding a delimitation of constituencies without census or based on a census held in 2011 is an egregious violation of the basic feature of the constitution. Democratic order based on an adult franchise is the basic feature of the Indian Constitution. Article 329 of the Indian Constitution is deficient in any manner whatsoever, to legitimize the fracture or comminuted fracture of the basic feature of the constitution of India.

A fresh census of population in Jammu region is being suggested by BJP, so as to include the illegal migrants and others who have settled in Jammu region. The Supreme Court of India in a judgment in the Sarbanda Sonowal case remarked that illegal migrants who invade an Indian state commit an act of aggression. So, aggressors cannot be included in the population of an Indian state. Any census in J&K will have to exclude refugees from West Punjab who instead of being settled in East Punjab were settled in J&K as an act of perfidy and with the studied objective to change the demographic character of Jammu region.

Mehbooba Mufti, the ex-Chief Minister of this state who was earlier mainly complicit with the policies of the centre, has now pointed out that the result of this J&K Delimitations commission is a “foregone conclusion".

The Delimitation Commission has realized that it is not people but politicians who are the centre of focus in the fault line states — that is why this commission visited Jammu and Kashmir for four long days. Somebody has rightly pointed out that in fault line states, a politician of maturity is one who can speak truth alloyed with whopping lies but with extreme dexterity and with whopping success conferring up a convincing manner of actions till his audience keeping in view the logic of consequences agrees to treat untruth as a sanctified gospel. People however, are as ever misled.

This decimates the impartiality of this Commission. Official bias, according to a plethora of judgments of the U.S Supreme Court, is most pernicious force that is always an imminent threat to justice. It is a denial of due process, if the state, knowingly encouraged the deadly possibility of bias.

In this backdrop, I revert back to the decision of the US Supreme Court in Baker v/s Car 369 u.s.186 (1962) which should be an eye opener. In this case it was laid down:

1-Federal Courts have power to hear claims by voters challenging the constitutionality of distribution of legislative seats.

2-It is the people who have to petition the state legislature to reapportion the legislative Districts.

3-Representation can be only in proportion to the population.

This authority which still holds the field has pinpointed that the quintessence of the democratic process, lies in the fact that representation can only be in proportion to the population.

Hence, this dissentient opinion is asseverated so that some compunction is sensed by Indian public opinion which is to be guided by the laws of anthroposophy and rationality. It is an irony of circumstances that also qualifies as whammies for people of Kashmir that chairperson Justice (Rtd) Ranjana P Desai had to declare: “I can only assure you on behalf of myself and my colleagues here that the exercise is going to be transparent by the letter of law.” She is right — the delimitation will not be done according to data about the actual population of Jammu & Kashmir state. This process in constitutional parlance is called hallmarking of illegality as the litmus test for legality.

  • The author is a Senior Advocate of the High Court of Jammu, Kashmir & Ladakh

Views expressed in the article are the author's own and do not necessarily represent the editorial stance of Kashmir Observer.

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