29th Constitution Amendment (2002 ) has been unfair to JK RPA 1957 & Section 50 of JK Constitution
Daya Sagar Sharma
March 08, 2009
A Look through the mist
Section 47 of the Jammu and Kashmir Constitution lays down only the total number of Single Member Assembly Segments in the Legislative Assembly. Section -47 of J&K Constitution does not lay down region wise or District wise allocation of seats in Legislative Assembly. The first laid down strength of MLAs in 1957 was 100 and through Constitution of Jammu and Kashmir ( twentieth amendment ) Act of 1987 the strength has been raise to 111. It is also provided that Governor may if he is of opinion that women are not adequately represented in the Assembly, nominate not more than two women to be members thereof.
As regards distribution and setting territorial boundaries of Legislative Assembly Segments it is laid down in Sub Section -2 of Section 47 of J&K Constitution that the State shall be divided into single member territorial constituencies by such authority and in such manner as the Legislature may by law determine. And for this purpose Jammu & Kashmir Representation of the People Act 1957 was passed by the legislature. Type of Authority ( Delimitation Commission in this case ) , norms for delimitation, broader parameters for deciding the boundaries of seats in assembly ( MLAs ) and the procedure has been laid down in the Representation of the people Act 1957. The time frame for repeating the delimitation has been laid down in Section 47 of J&K Constitution under sub – Section – 3 itself ( Upon the completion of each census, the number, extent and boundaries of the territorial constituencies shall be readjusted by such authority and in such manner as the Legislature may by law determine. It is also laid under Sub Section 48-A that notwithstanding anything contained in this Constitution if upon the completion of a census, but before the final readjustment of territorial constituencies, the Legislative Assembly is dissolved prior to the expiry of its duration and the Governor is satisfied that holding of general election without delay is necessary, he may, after consulting the Election Commission, by notification direct that the general election shall be held on the basis of the last preceding delimitation of territorial constituencies.). But through the Constitution of Jammu and Kashmir (Twenty-ninth Amendment) Act, 2002, it has been later laid down that until the relevant figures for first census taken after the year 2026 have been published, it shall not be necessary to readjust the total number of seats in the Legislative Assembly of the State and - the- division of the State into territorial constituencies under sub-section -3 of Section -47.This amendment in a way has distributed the seats in assembly in different regions of the State till 2032 AD ( since first census results after 2026 AD will be of 2031 AD census only ). So in a way a final distribution ( nearly 36 years ) on regional basis becomes the delimitation proposals as ordered by Justice K. K. Gupta Commission on 27 -04-1995 ( Ladakh Region -4, Jammu region 37, Kashmir Region.-46 , POK areas -24 ). 29th Constitutional amendment has in a way encroached upon the rights of people of J&K and the provisions as laid down in J&K Representation of the People Act 1957 for distribution of single member legislative assembly segments ( MLAs). It could also be said that 29th Constitution amendment is just like a CLONE. of Section 48 of J&K Constitution. ( Section- 48 is a Provision relating to Pakistan- occupied territory. It lays down that not withstanding anything contained in section 47, until the area of the State under the occupation of Pakistan ceases to be, so occupied and the people residing in that area elect their representatives twenty-four seats in the Legislative Assembly shall remain vacant and shall not be taken into account for reckoning the total membership of the Assembly; and the said area shall be excluded in delimiting the territorial constituencies under section 47 ).
Ofcourse J&K is a welfare State. And this well reflected in section 49 of J&K Constitution. Section -49 lays the provision for reservation of seats for Scheduled Castes. It is constitutionally laid down that a particular ( adjustable after every census ) number of seats shall be reserved in the JK Legislative Assembly for the Scheduled Castes . The number of seats reserved shall bear in the same ( as nearly possible ) proportion to the total number of seats in the Assembly as the population of the Scheduled Castes bears to the population of the State ( "Scheduled Castes" means Scheduled Castes in relation to the State under the provisions of Article 341 of the Constitution of India ) . The effect of 29th Constitutional amendment is also seen on the welfare provisions as laid in the Constitution. Through the 29th Constitutional amendment its has been added that the last preceding census of which the relevant figures have been published shall, until the relevant figures of the first census taken after the year 2026 have been published, be construed as a reference to the 1981 census.. This means that no readjustment of boundaries, re determination of number of reserved seats , no relocation of the constituencies would be done in normal course till 2031 like it is laid for general delimitation.
Section -3 of J&K Representation of the People Act 1957 lays down that as soon as may be possible after the completion of each census the Governor shall constitute a Commission to be called the Delimitation Commission which shall consist of three members [ (a) two members, each of whom shall be a person who is or has been a Judge of the Supreme Court or of a High Court in India ; and (b) the Deputy Election Commissioner nominated by the Chief Election Commissioner.] The governor shall nominate one of the members appointed under clause (a) of subsection (I) to be the Chairman of the Delimitation Commission. ) It is the sub section -3 for Section -3 of J&K Representation of the People Act 1957 that clearly lays down that The Delimitation Commission shall determine the delimitation of Assembly segments.. So , whether it is through indirect impact of 29th Constitutional amendment that number of seats in Legislative Assembly have been fixed for Jammu region as 37 , Kashmir Region as 46 and Ladakh Region as 4 or any one suggests / demands that seats in Assembly be fixed in equal numbers both for Jammu and Kashmir Regions through a Constitutional Bill / Act ( and then do Delimitation at regional level ), both the proposals would be contrary to the thinking of elders who gave the people of J&K their Constitution.
It had also been suggested that the people in J&K need more MLAs than present number of 87 ( excluding 24 seats reserved for POK areas ) so that MLAs can reach people in distant areas. As per reports Ghulam Nabi Azad the then Chief Minister had suggested that the number of seats in the Assembly be increased by 25 %. .It was a good suggestion in general but the manner in which Ghulam Nabi wanted to increase seats was logically bad. He suggested that existing numbers on regional basis be increased by 25 %..This would have put a permanent constitutional seal over the number of MLAs for Jammu, Ladakh and Kashmir regions by first amending section -47 of J&K Constitution to increase the MLAs by 25 % from 111 to 139 and then amending Section -48 of J&K Constitution fixing 46 MLAs for Jammu region , 58 MLAs for Kashmir region , 5 MLAs for Ladakh Region and 30 MLAs for POK. This would have been a permanent seal on the fate of Jammu and Ladakh Regions in the J&K Legislature Rather it would make Jammu region permanently junior partner to Kashmir region in Legislative Assembly. Where as as per Section- 50 of J&K Constitution Jammu Region has more elected MLCs ( 14 ) than the elected MLCs Kashmir Region has ( 12 ) Any hopes of even some fair delimitation after 2031 ( if atall there in view of 29th Constitutional Amendment 2002 ) would have buried further deep in the grave. Some protests were made by some MLAs out side the house but they too demanded similar provision except that they asked for equal MLAs for Jammu and Kashmir Regions. One such proposal was for 52 MLAs each for both regions after increasing the total number by 25 %. This too was not fair. Any how though Congress lead government had planned 33rd Constitutional Amendment for 25 % increase in MLAs on regional basis , Azad later with drew this proposal as well since this too needed amending the 29Th Constitutional amendment that has also sealed the total number of seats in assembly till 2031.
Section -4 of J&K Representation of Peoples Act is a very sincerely laid down provision for Delimitation of Assembly Constituencies. It lays down (a) readjust the extent and boundaries of the Assembly Constituencies ; and (b) determine the number of seats in the Legislative Assembly to be reserved for the Scheduled Castes . It is laid down that The Delimitation Commission shall in the manner herein provided, distribute the in the Legislative Assembly to single member territorial constituencies and delimit them having due regard, as far as practicable to the (a) (i) Population as ascertained at the last preceding census of which the relevant figures have been published ;and (ii) geographical compactness ;and (iii) nature of terrain ; and (iv) facilities of communication ; and (v) the like consideration.] (b) constituencies in which scats arc reserved for the Schedule Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large,
(Daya Sagar is social activist and leading coloumnist on Kashmir affairs)
Section 47 of the Jammu and Kashmir Constitution lays down only the total number of Single Member Assembly Segments in the Legislative Assembly. Section -47 of J&K Constitution does not lay down region wise or District wise allocation of seats in Legislative Assembly. The first laid down strength of MLAs in 1957 was 100 and through Constitution of Jammu and Kashmir ( twentieth amendment ) Act of 1987 the strength has been raise to 111. It is also provided that Governor may if he is of opinion that women are not adequately represented in the Assembly, nominate not more than two women to be members thereof.
As regards distribution and setting territorial boundaries of Legislative Assembly Segments it is laid down in Sub Section -2 of Section 47 of J&K Constitution that the State shall be divided into single member territorial constituencies by such authority and in such manner as the Legislature may by law determine. And for this purpose Jammu & Kashmir Representation of the People Act 1957 was passed by the legislature. Type of Authority ( Delimitation Commission in this case ) , norms for delimitation, broader parameters for deciding the boundaries of seats in assembly ( MLAs ) and the procedure has been laid down in the Representation of the people Act 1957. The time frame for repeating the delimitation has been laid down in Section 47 of J&K Constitution under sub – Section – 3 itself ( Upon the completion of each census, the number, extent and boundaries of the territorial constituencies shall be readjusted by such authority and in such manner as the Legislature may by law determine. It is also laid under Sub Section 48-A that notwithstanding anything contained in this Constitution if upon the completion of a census, but before the final readjustment of territorial constituencies, the Legislative Assembly is dissolved prior to the expiry of its duration and the Governor is satisfied that holding of general election without delay is necessary, he may, after consulting the Election Commission, by notification direct that the general election shall be held on the basis of the last preceding delimitation of territorial constituencies.). But through the Constitution of Jammu and Kashmir (Twenty-ninth Amendment) Act, 2002, it has been later laid down that until the relevant figures for first census taken after the year 2026 have been published, it shall not be necessary to readjust the total number of seats in the Legislative Assembly of the State and - the- division of the State into territorial constituencies under sub-section -3 of Section -47.This amendment in a way has distributed the seats in assembly in different regions of the State till 2032 AD ( since first census results after 2026 AD will be of 2031 AD census only ). So in a way a final distribution ( nearly 36 years ) on regional basis becomes the delimitation proposals as ordered by Justice K. K. Gupta Commission on 27 -04-1995 ( Ladakh Region -4, Jammu region 37, Kashmir Region.-46 , POK areas -24 ). 29th Constitutional amendment has in a way encroached upon the rights of people of J&K and the provisions as laid down in J&K Representation of the People Act 1957 for distribution of single member legislative assembly segments ( MLAs). It could also be said that 29th Constitution amendment is just like a CLONE. of Section 48 of J&K Constitution. ( Section- 48 is a Provision relating to Pakistan- occupied territory. It lays down that not withstanding anything contained in section 47, until the area of the State under the occupation of Pakistan ceases to be, so occupied and the people residing in that area elect their representatives twenty-four seats in the Legislative Assembly shall remain vacant and shall not be taken into account for reckoning the total membership of the Assembly; and the said area shall be excluded in delimiting the territorial constituencies under section 47 ).
Ofcourse J&K is a welfare State. And this well reflected in section 49 of J&K Constitution. Section -49 lays the provision for reservation of seats for Scheduled Castes. It is constitutionally laid down that a particular ( adjustable after every census ) number of seats shall be reserved in the JK Legislative Assembly for the Scheduled Castes . The number of seats reserved shall bear in the same ( as nearly possible ) proportion to the total number of seats in the Assembly as the population of the Scheduled Castes bears to the population of the State ( "Scheduled Castes" means Scheduled Castes in relation to the State under the provisions of Article 341 of the Constitution of India ) . The effect of 29th Constitutional amendment is also seen on the welfare provisions as laid in the Constitution. Through the 29th Constitutional amendment its has been added that the last preceding census of which the relevant figures have been published shall, until the relevant figures of the first census taken after the year 2026 have been published, be construed as a reference to the 1981 census.. This means that no readjustment of boundaries, re determination of number of reserved seats , no relocation of the constituencies would be done in normal course till 2031 like it is laid for general delimitation.
Section -3 of J&K Representation of the People Act 1957 lays down that as soon as may be possible after the completion of each census the Governor shall constitute a Commission to be called the Delimitation Commission which shall consist of three members [ (a) two members, each of whom shall be a person who is or has been a Judge of the Supreme Court or of a High Court in India ; and (b) the Deputy Election Commissioner nominated by the Chief Election Commissioner.] The governor shall nominate one of the members appointed under clause (a) of subsection (I) to be the Chairman of the Delimitation Commission. ) It is the sub section -3 for Section -3 of J&K Representation of the People Act 1957 that clearly lays down that The Delimitation Commission shall determine the delimitation of Assembly segments.. So , whether it is through indirect impact of 29th Constitutional amendment that number of seats in Legislative Assembly have been fixed for Jammu region as 37 , Kashmir Region as 46 and Ladakh Region as 4 or any one suggests / demands that seats in Assembly be fixed in equal numbers both for Jammu and Kashmir Regions through a Constitutional Bill / Act ( and then do Delimitation at regional level ), both the proposals would be contrary to the thinking of elders who gave the people of J&K their Constitution.
It had also been suggested that the people in J&K need more MLAs than present number of 87 ( excluding 24 seats reserved for POK areas ) so that MLAs can reach people in distant areas. As per reports Ghulam Nabi Azad the then Chief Minister had suggested that the number of seats in the Assembly be increased by 25 %. .It was a good suggestion in general but the manner in which Ghulam Nabi wanted to increase seats was logically bad. He suggested that existing numbers on regional basis be increased by 25 %..This would have put a permanent constitutional seal over the number of MLAs for Jammu, Ladakh and Kashmir regions by first amending section -47 of J&K Constitution to increase the MLAs by 25 % from 111 to 139 and then amending Section -48 of J&K Constitution fixing 46 MLAs for Jammu region , 58 MLAs for Kashmir region , 5 MLAs for Ladakh Region and 30 MLAs for POK. This would have been a permanent seal on the fate of Jammu and Ladakh Regions in the J&K Legislature Rather it would make Jammu region permanently junior partner to Kashmir region in Legislative Assembly. Where as as per Section- 50 of J&K Constitution Jammu Region has more elected MLCs ( 14 ) than the elected MLCs Kashmir Region has ( 12 ) Any hopes of even some fair delimitation after 2031 ( if atall there in view of 29th Constitutional Amendment 2002 ) would have buried further deep in the grave. Some protests were made by some MLAs out side the house but they too demanded similar provision except that they asked for equal MLAs for Jammu and Kashmir Regions. One such proposal was for 52 MLAs each for both regions after increasing the total number by 25 %. This too was not fair. Any how though Congress lead government had planned 33rd Constitutional Amendment for 25 % increase in MLAs on regional basis , Azad later with drew this proposal as well since this too needed amending the 29Th Constitutional amendment that has also sealed the total number of seats in assembly till 2031.
Section -4 of J&K Representation of Peoples Act is a very sincerely laid down provision for Delimitation of Assembly Constituencies. It lays down (a) readjust the extent and boundaries of the Assembly Constituencies ; and (b) determine the number of seats in the Legislative Assembly to be reserved for the Scheduled Castes . It is laid down that The Delimitation Commission shall in the manner herein provided, distribute the in the Legislative Assembly to single member territorial constituencies and delimit them having due regard, as far as practicable to the (a) (i) Population as ascertained at the last preceding census of which the relevant figures have been published ;and (ii) geographical compactness ;and (iii) nature of terrain ; and (iv) facilities of communication ; and (v) the like consideration.] (b) constituencies in which scats arc reserved for the Schedule Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large,
(Daya Sagar is social activist and leading coloumnist on Kashmir affairs)