AN APPARENT discrepancy between the Union Government’s order setting up the Delimitation Commission and the J&K Reorganisation Act could cast a shadow over the redrawing of Assembly seats in the state, a key element in kickstarting the political process there.
The J&K Reorganisation Act, 2019, under Section 60(1), entrusts the Election Commission (EC) with delimiting seven additional seats for the 83-member J&K Assembly, besides deciding reservation for the SC and ST communities.
However, seven months after the J&K Act was passed, through an order of March 6, 2020, the Law Ministry gave this job to the three-member Delimitation Commission headed by retired Supreme Court judge Ranjana Desai.
The Act, which revoked J&K’s special status and bifurcated the state into two Union Territories, calls for a Delimitation Commission — under Section 62(2) — only for future “readjustment” of seats drawn up by the EC.
Law Secretary Anoop Kumar Mendiratta did not respond to The Indian Express’s email seeking comment on this discrepancy.
Additional Secretary Reeta Vasishta directed this reporter to JS (North-East) Ministry of Home Affairs “since that ministry administers the Act referred to by you.” Joint Secretary Piyush Goyal, in charge of the Northeastern states in the Home Ministry, was not available for comment.
Chief Election Commissioner Sushil Chandra is a member of the new Delimitation Commission and the EC is providing secretarial assistance for the ongoing exercise in J&K. However, the EC and Delimitation Commission are two distinct entities. The former is a permanent Constitutional authority, and the latter gets disbanded after the delimitation exercise is complete.
Desai and the EC spokesperson did not respond to requests for comment but The Indian Express has learned that the EC had discussed this issue internally and concluded that the government’s order does not violate the J&K Reorganisation Act since Section 62 of that Act anyway empowers the government to establish a Delimitation Commission.
This isn’t the case, said S K Mendiratta, EC’s longest-serving former legal advisor. He was also legal adviser to the Delimitation Commission headed by Justice Kuldip Singh that redrew boundaries of all Parliamentary and Assembly constituencies in the country, except in J&K, in an exercise conducted from 2003 to 2008.
“The Delimitation Commission has been constituted by the Law Ministry, and they know the law best,” said Mendiratta. “But from a first reading of Sections 60 to 64 of the J&K Reorganisation Act 2019, it appears that the initial division of the UT of J&K into 90 Assembly seats is the job of the EC under Section 60. It further appears (from Section 62) that any readjustment in the constituencies drawn up by the EC should be taken up by a Delimitation Commission only after the first Census done after the year 2026.”
Incidentally, it was Mendiratta who had pointed out the first legal infirmity in the Law Ministry’s gazette notification of March 6, 2020, in a letter written to the three Election Commissioners last year.
He had red-flagged this order for establishing a Delimitation Commission for Arunachal Pradesh, Manipur, Assam, and Nagaland even though a 2008 amendment to Representation of the People Act 1950 clearly states that delimitation in the four North-eastern states, when held, would fall within the EC’s remit.
Hence, any delimitation exercise in these states by the new Delimitation Commission would have been “declared void by the courts,” Mendiratta had said in his letter.
Interestingly, eight months later, the government abandoned delimitation for the four North-eastern states. In an order released March 3 this year, the Law Ministry extended the Delimitation Commission’s term by a year for J&K but excluded the North-eastern states from its mandate.
The Delimitation Commission for J&K has already carried out a bulk of its work. It has held meetings with the district commissioners and heard representations from political parties and other stakeholders. During the four-day visit to the UT, the Commission met 280 delegations comprising nearly 800 people and heard their suggestions on the delimitation process. Representatives of all regional political parties, barring PDP, met the Commission to give their feedback.
Delimitation is the act of redrawing boundaries of Lok Sabha and Assembly constituencies to represent changes in population and is done on the basis of the preceding Census.
Delimitation is crucial for kick-starting the political process in J&K. In his first outreach meeting with J&K’s mainstream political leaders last month, Modi had sought their cooperation to complete the delimitation exercise that would eventually lead to elections. In his Independence Day speech last week, he underlined that preparations to hold assembly elections in J&K and the redrawing of constituencies are on track.