Justice G D Sharma (Retd)
In the 19th century, Maharaja Ghulab Singh, a Dogra valiant soldier and statesman of par excellence had succeeded in building his kingdom from the debris of Maharaja Ranjit Singh’s empire after the latter’s demise. He falls in the line of great historical kings like Samrats Vikramaditya, Ashoka, and Napoleon to some extent, who had extended the boundaries of their kingdoms across sub-continent or country. He organized Dogras of Jammu region belonging to all castes, creeds, and by organizing them energized the inherent fighting spirit amongst them. He raised a formidable fighting force amongst them which is known in history as Dogra Army Regiment. This army of Dogras hailing from rugged mountainous region could during those days in harsh weather were able to subjugate high and lofty those areas of deep Himalayas which any modern day Army with modern means of warfare are finding difficult to hold and retain them. His newly created kingdom was/is not only a landmass but it is territory inhabited by people professing different faiths, speaking different languages and dialects. He brought such heterogeneous population of three regions – Jammu, Kashmir, Ladakh inclusive of frontier “Illaquas of Skardu, Kargil (known as Baltistan) and Gilgit (Agency, consisting of some smaller principalities annexed-therein subsequently under his rule). In this manner, he carved out the biggest State in area wise in Indian History which still existed at the time of partition of the country in 1947. This state at that material time of partition, was bigger in area than the areas of 111 free countries individually of the world. The State had/has unique strategic position of exceptional importance as its boundaries touch with the boundaries of erstwhile British province of Punjab and Afghanistan, Russia, Tibet and China. During the rule of his great grandson Maharaja Hari Singh, the area of the State was 222236 Sq.kms. At the time of aggression of Pakistan over the State of Jammu and Kashmir on 22nd Oct.1947, Jammu Province had an area of 32315 Sq.kms and Kashmir Province consisted of 22133 Sq.kms. Kashmir was the smallest area wise region and number two in population as compared to Jammu. Remaining area falls in the territory of Ladakh and its frontier Illaquas as well as Gilgit Agency. Sizeable area of that part is being retained by Pakistan by way of booty of aggression. After the war of 1962, China also forcibly occupied a big chunk of state land. The whole State raised by Maharaja Gulab Singh was finally officially designated as the State of Jammu and Kashmir (J&K) and this official name continues to be recognized till date in the country as well as in the comity of Nations. Maharaja Hari Singh, the last ruler of Maharaja Gulab Singh’s dynasty as a great nationalist despite feeling that all the dices were loaded against him had voluntarily made Accession of his State in 1947, under the Indian Independence Act of 1947 with the newly created Dominion of India. In other words, he had acceded 222236 Sq.kms. along with population. Freedom of the Country was a boon for the Indian Nation but proved bane for Dogras inhabitants of part of J&K State.
On the basis of 1941 census held during Maharaja Hari Singh’s time vide report dated 15-10-1940 and 16-10-1940, the population of the State, along with censuses held during 1941, 1981 and 2011 are tabulated herein under :-
To make it clear, the Jammu Province has the additional quota of votes of 382002 voters and in case the mandate and spirit of Section 50 of the State Constitution is taken into account along with requirements of Section 4 of the J&K Representation Act, one additional Parliamentary Seat can be legally claimed along with corresponding increase in J&K Assembly Constituencies.
On 20th April, 1951, Dr.Karan Singh being the Regent of the State proclaimed for constituting the Constituent Assembly ( to frame Constitution of the State of J&K). The Drafting Committee on Oct. 10, 1956 presented the draft of constitution. After detailed discussions, the Constitution was approved and adopted on 17th Nov. 1956 and came into force on 26-1-1957. In the above said proclamation of 1951, 75 Constituencies for elections were earmarked for the State of J&K and 25 Constituencies were reserved for the area which is illegally occupied by Pakistan by aggression.
On 31st Oct.1951, the first session of Constituent Assembly was held under the tenure of Sheikh Abdullah as Prime Minister. This Assembly was constituted under the Constitution of 1939 framed by Maharaja Hari Singh. After aggression, there was no official record of the population but Sheikh Abdullah without consultation of the Maharaja who was ruler at that time carved out 75 Constituencies. In an arbitrary and capricious manner he reserved 43 Constituencies for Kashmir Region, 30 for Jammu Region and 2 for Ladakh Region. At that time, there was only one regional political party of Jammu Region known by the name of “Praja Parishad” who was challenging the autocratic behaviour of Sheikh Abdullah. Though Indian Congress Party had not opened its account in the State but was wholly supporting Sheikh Abdullah’s National Conference. Sheikh Abdullah’s mission of life was to establish his personal rule over the remaining two regions of the State i.e. of Jammu and Ladakh too..
Out of 43 Constituencies of Kashmir Region, Sheikh Abdullah won 41 Constituencies (uncontested) as the nomination papers of all those contestants were got rejected at the time of scrutiny. The remaining two Assembly constituencies remained for contestants but contestants under lurking threat themselves withdrew from the contest.
In Jammu Region, Praja Parishad filed nomination papers of its candidates to contest the elections out of 30 constituencies but from 13 constituencies their nomination papers were rejected. As a result, Praja Parishad had boycotted the elections. In this manner, Sheikh captured all the 75 constituencies in the Constituent Assembly for his person. Yousef Korbel, in his Book “Danger in Kashmir” at Paga 222 has recorded ‘such a success even a dictator cannot achieve’. This was a very calculated move of Sheikh Abdullah to place Kashmir Region at the dominant position over other two regions and then dictate terms to the Central Government for getting removed Maharaja Hari Singh as a ruler of the State and take all the reigns of governance in his hands as an Absolute Monarch. He had an eye to blackmail India over the triumph card which he had in his hands for winning over the Plebiscite in favour of India in the United Nations. There remained only 2 independent candidates for the contest from Kana Chak and Akhnoor seat from Jammu District but they too withdrew from the contest. In this manner, Sheikh Abdullah captured all the 75 Constituencies in the Constituent Assembly. The case had been taken in the United Nations by India under a well thought conspiracy hatched by the Britisher through Lord Mountbatten who was Governor-General of India by giving a wrong advice to Pandit Jawaharlal Nehru on the pretext that Kashmir problem would be solved very soon. Lord Mountbatten had influenced Pandit Nehru. In the United Nations, Anglo-American block got a readymade handle in their hands to blackmail India and help their Protege State of Pakistan which was created by them under a deep rooted conspiracy to have a check on Russia and China as well as protect their economic rights and interests in the oil wells of Muslim block of Arabian countries.
The elections of 1951 had lost their credibility after the disturbances of 1947 when Hindu Population stood uprooted from about half of the area from Jammu Region and from whole Muzafarbad District and part of a Baramulla District from Kashmir region. Some of them were massacred in communal frenzy by the locals and some by Pakistani raiders. They were not allowed by Sheikh Abdullah to settle in Kashmir Province but pushed to Jammu Region. Similarly, Muslims of Jammu Hindu majority areas too equally suffered. A substantial number of them migrated to Pakistan. In nutshell, there was no authentic electoral roll prepared by an independent agency to prepare an authentic report of eligible voters.
Graig Bazter, in his book The Jan Sangh: A Biography of an Indian Political Party (page 117) has written that “this was not unimaginable that Praja Parishad under those circumstances might have chosen other ways to achieve its objects.”
Sheikh Abdullah was in a great hurry to take revenge with the royal family and with the aid of his selected and then elected 75 members got a tainted and illegal report prepared on 10 June 1952 to achieve his life-long objectives. First of all, he abolished the Autocratic rule of Maharaja Hari Singh under whose sovereign authority that Constituent Assembly was constituted under the Constitution Act of 1939 which recognized the sovereign authority of the Maharaja even over the Legislature. He had totally forgotten the written pledge given to Maharaja in his Letter of Apology dated 29th September 1947 whereunder his remaining conviction and sentence for 1 ½ years for an offence of sedition was pardoned by the Maharaja. Maharaja was the sole fountain head of Sovereign authority and at the assurance of Prime Minister Pt. Nehru on 5th March 1948 had appointed him as Prime Minister of the State by terminating the tenure of his appointed Prime Minister Mehr Chand Mahajan whose tenure had to expire in 1952.
The elections of 1957 for Legislature Assembly were held under local Election Commission and Bakshi Ghulam Mohammad at that time was the Prime Minister. Sheikh Abdullah in 1953 was dismissed from the post of Prime Ministership as all his Cabinet Ministers had revolted against his autocratic rule as well as available reports for entering into conspiracy with foreign powers to become an independent ruler. He was put under detention. Rest is all a matter of history. Maharaja during his rule had given equal value of voting for the elections of Praja Sabha to the region of Kashmir also. During the elections of 1957, Regional Political Party Praja Parishad which was the only organized cadre based party could win only 5 seats despite 17 nomination papers were filed to contest the elections. There was great hue and cry for malpractices in these elections. Credible evidence was available that ballot boxes were defective and in them votes were tampered.
The jurisdiction of the Election Commissioner of India had not been extended in the State of J&K, which was extended only after the year 1960 when Delimitation Commission was constituted under the Chairman of Justice GI Kapur with RC Soni, both Retd. Judges of Punjab High Court and KVK Sundram Election Commissioner of India. After the receipt of their report and census of 1961, the jurisdiction of Election Commission of India was extended. Elections of 1951 and 1957 were conducted under the control of State Elections and Franchise Commissioner. Before 1967, nominated members were sent to Lok Sabha from the State of J&K. The Elections of 1962 were held under the control of Election Commission of India. Fundamental rights were not available to the people of Jammu and Kashmir during Sheikh Abdullah’s rule till 1953. After his arrest, the Govt. headed by his Deputy namely, Bakshi Ghulam Mohd by virtue of Constitution Application Order 1954, fundamental rights were made applicable and available but with few modifications. During the elections of 1962/1977 Jammu Region had been able to secure 2 more seats in instalments at different times and thus number rose to 32. From Kashmir region one seat was decreased and it was made 42.
When census of 1981 were held, Sheikh Abdullah was the Chief Minister of the State. He in 1979 sumoto had created 3 more Districts in Kashmir Valley. Under political compulsions he constituted Delimitation Commission and retired Chief Justice of J&K High Court late Wazir Janki Nath was appointed as its Chairman and Justice Mian Jalal-ud-Din and S. L. Shakdar Chief Election Commissioner of India (Ex-officio) as Members. After the expiry of the term of Chairman J N Wazir Chief Justice (Retd.), Mian Jalal-ud-Din was made the Chairman. He occupied this position for a pretty long time but did not give his report. Ultimately he resigned in 1991. Vide SRO No.52 dated 29-1-1991 Justice K.K. Gupta was appointed as Chairman. This was hey day time for militancy and some Muslims retired Judges from Kashmir Valley as members had to tender resignations under threats. Shri TN Sheshan at that time was Chief Election Commissioner and by virtue of his official position he became the third member. The predecessor of third member Sh. TN Sheshan (Pirri Shastri) used to attend the meetings but TN Sheshan did not attend any meeting as he was not satisfied with the working of the Commission and his adverse comments were coming in the newspapers. The State was under Governor rule from 1990 to 1996 and the President of India in order to make the Commission functional amended the relevant Section 3 of J&K Representatives of People Act 1957, which deals with the Constitution of a Delimitation Commission. This was done through ordinance and after the elections of 1996, when Farooq Abdullah had come into power, the ordinance was made law. By virtue of amendment Deputy Election Commissioner was appointed 3rd member.
This Commission had finalized the Delimitation report on 27.04.1995 which was published in Extra Ordinary Issue of the State Gazette on 28.04.1995. 46 segments of electoral constituencies were made for Kashmir region, 37 for Jammu region and 4 for Ladakh region. The final report had been signed by the
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Chairman Justice Retd. K.K. Gupta, the sitting Judge of J&K High Court Mr. Bilal Nazqi and Deputy Election Commissioner on behalf of Election Commission of India. It is misfortunate for the inhabitants of Jammu region to remain deprived of getting their due share because of the amendment of Section 47 of the Jammu and Kashmir Constitution which was done in 2002 (during Dr.Farooq rule) and by virtue of it any addition or alteration of Constituencies upto the year 2026 stands freezed. In this way, the domiciles of Jammu region has to face injustice of having equal rights of voting till 2031 when census would be held and Delimitation Commission constituted.
The political party of J&K by the name JKNPP challenged the amendments of the relevant provisions of J&K Representation of People Act as well as Section 47(3) of the J&K Constitution by filing PIL in the High Court of J&K which was decided by the Division Bench reported in (2010 (1) SLJ Page 1). The writ petition was dismissed and the relevant portion in a concised manner is reproduced: The plea of the petitioner was that the stoppage of readjustment of the extent and boundaries of territorial constituencies affects democracy as enshrined in the Constitution was not accepted. The Court was swayed by accepting the principles that, “Delimitation for the purpose of dividing the State into single Member territorial constituencies to the extent of number of members of the Legislative Assembly is the mandate of the Constitution and is basic feature of democracy contemplated in the Constitution but readjustment of the extent and boundaries of such territorial constituencies upon completion of each census is not such a mandate, nor it is contemplated to be the basic structure of democracy contemplated in the Constitution.” It was further held that the right of equality as guaranteed to the citizens of India does not entail exact equality in the matter of weight of the voter by reasons of the other provisions contained in the Constitution of India.
The petitioner felt aggrieved from the Judgment of the Division Bench and filed Civil Appeal Number of 2010 (arising out of SLP (C) No.22224/09 in the Hon’ble Supreme Court which was dismissed on 9 Nov. 2010. The main thrust in appeal was a challenge to the vires of the amendment of Section 3 of the J&K Representation of People Act and amendment of Section 47 (3) of the Constitution of J&K on the ground that composition of various constituencies would continue despite the census operation being carried out. It was also pleaded that without giving the proper representation of the people of the State, the assurance of delimitation will be defeated in the elections and that the figures of the census of 2001 had required setting up of a Delimitation Commission after accepting it so that true and popular view of the democracy could surface. It was also pleaded that against the 37 constituencies of the Jammu Region, some are reserved for SC & ST whereas out of 46 constituencies in Kashmir Region not even a single seat is reserved for them. It would result in that reserved seats would not be rooted or changed for 35 years. The appeal was rejected and some salient features of the Judgment in brief are set-down here, :
” in Para 11 of the Judgment the Supreme Court has observed that no substantial challenge has been made to the amendment of the Constitution of J&K in the writ petition by the appellant. In Para 12 it is further mentioned, “we do not find adequate pleading challenging the amendment to Section 47 of the Constitution of J&K.” It is also reiterated in the Judgment that during arguments it was pleaded that not holding of a delimitation exercise immediately after the completion of the census as a result of the aforesaid amendment is unconstitutional. That amendment was itself violative of basic structure of the Constitution of India as applicable to the State as well as to State Constitution.
These arguments were repelled by the court after holding that delimitation laws made under Article 327 of the Constitution of India are immune from the judicial test of their validity and the process of allotment of seats and constituencies is not liable to be called in question in any court by virtue of Article 329 (A) of the Constitution of India read with Section 142 (A) of the Constitution of J&K. In holding so, the apex court was guided by the law laid down by the Constitution Bench of the Supreme Court in the case of RC Poudyal and others vs. Union of India and others (1994), Supp 1 SCC 324 wherein it is held that perfectly, arithmetical equality of value of voters is not constitutionally mandated imperative of democracy and that even if the impugned provisions make a departure from tolerance limits and the constitutionally permissible latitudes, the discrimination arising are justifiable on the basis of historical considerations peculiar to and characteristic of the evolution of Sikkim’s Political Institutions and the same is true in case of J&K State. While dismissing the appeal, it was held that challenge regarding basic structure of the Constitution is also not based on a sound principle.
With due respect to the Division Bench Judgment of the J&K Hon’ble High Court as well as of the Hon’ble Supreme Court, I would say that on behalf of the domiciles of Jammu a correct and true factual and legal matrix was neither set out in the pleadings nor advanced during the arguments. In my view the ratio decidendi of the above referred Judgments is not applicable to the case of the J&K on the basis of the following grounds:-
1. The Jammu and Kashmir State has the special status of having its own Constitution in view of the Judgment of the Supreme Court 2017 (2) SCC 538 State Constitution does not have equal status as Constitution of India which is paramount in State of J&K. The report given by Justice K.K. Gupta is violative of relevant provision of Constitution as well as Section 50 of the State Constitution and provisions of the J&K Representation Act of 1957. Equally, subsequent amendments in Section 47 (3) of the State Constitution and J&K Representation of People’s Act also suffer from inherent invalidity. Section 50 of the State Constitution enshrines total number of 36 members in the Legislative Council, out of them 11 members have to be elected by the members of the Legislative Assembly from amongst persons who are residents of Jammu Province and 9 members have to be elected by the Legislators hailing from Kashmir Region. This parity of 2 seats have been maintained after the elections to be held in the manner provided under that Section from Electoral Colleges as well as by way of nominations. The framers of the Constitution by giving majority of 2 members to the Jammu Region has followed the mandates of Section 4 of the J&K Representation of People Act (hereinafter referred to as Act). The section says that while distributing seats in the Legislative Assembly five things have to be kept in view and they are :
i) population as ascertained at the last preceding relevant figures;
ii) Geographical compactness;
iii) Nature of terrain;
iv) Facilities of communication and
v)the like consideration.
2. Injustice was done to the domiciles of Jammu Region from the year 1951 when constituent Assembly was framed as without any authentic number of population of the two divisions, the representatives were selected and got elected. This factual fact has already been stated above in details showing arbitrary and despotic nature of the then Prime Minister of the State. Not only that, mass migration of Hindu population from Kashmir Region estimated about 3.5 lakhs inclusive of migration faced by some patriotic members belonging to majority community on the onset of militancy during 1990 have not been taken into account by Delimitation Commission. Not only that, remaining three requirements of Section 4 of the Act as stated above, were not considered. Besides that, such reservation of seats for SC & ST and the nature of dominant monolithic and more heterogeneous nature of population of both the regions. All these facts were taken into consideration by the framers of the Constitution of the State. In this manner, the report of the Delimitation from the very beginning was void abinitio.
Population Kashmir Jammu Ladakh Total
Census of 1941 17,28,686 20,00,157 3,11,915 40,21,616
(which is not
included in the
total of the table)
Census of 1981 31,34,904 27,18,113 1,34,372 59,87,389
Census of 2011 69,07,623 53,50,811 2,90,492 1,25,48,926
Number of Voters In The Parliamentary Elections Of 2014
No. of Voters
Ladakh (Region) 166763
Baramulla
(Kashmir Region) 1190766
Srinagar
(Kashmir Region) 1207230
Anantnag
(Kashmir Region) 1301143 Total of Baramulla, Srinagar, Anantnag = 3699229
Udhampur
(Jammu Region) 1469072 Total of Udhampur and Jammu = 3317227
Jammu
(Jammu Region) 1848155
Difference of voters of Kashmir region and Jammu
Region= 382002
3. The ratio decidendi of the case of Kesavananda Bharati vs. State of Kerala 1973 SC 1463 should have been reflected in the pleadings and reiterated in the arguments. This was a case decided by 13 judges, wherein the basic structure of the Constitution was held to be of unalterable nature. The basic structure in its essential broader sense has been stated consisting of the following features:-
Supremacy of the Constitution.
Republican and democratic form of government.
Secular character of the Constitution.
Separation of powers between the Legislature, the Executive and the Judiciary.
Federal character of the Constitution.
The Hon’ble Supreme Court in the said appeal (SLP 22224/09) filed by JKNPP in para number 29 has elaborated the concept of basic structure in a more explicit, transparent and exhaustive manner by stating, “it is hazardous to define what is Basic Structure of the Constitution as what is basic does not remain static for all time to come.” They have referred 14th edition of Shorter Constitution of India by DD Basu and have noted down the basic features which have been culled out from various pronouncements of the Supreme Court. Although the above noted five ingredients of Basic Structures remain the genesis but their species have been enumerated in the judgment under heads (a) to (v). Shorn of un-essentials which are not germane to the present controversy, the remaining are stated hereunder:
(b) The principles behind Fundamental Rights.
(c) The objectives specified in the Preamble to the Constitution.
(i) Freedom and dignity of the individual.
(m) The ‘essence’ of other Fundamental Rights in Part III.
(n) The concept of social and economic justice – to build a welfare State.
(q) The principle of free and fair elections.
(r) Limitations upon the amending power conferred by Art. 368.
Adverting to the facts of the present case in hand, the amendments in question have violated the secular character of the Constitution of J&K as well as that of Constitution of India because the principles behind the Fundamental Rights, their essence and dignity of the electorates of Jammu region are denied in violations of the guarantees of Fundamental Rights enshrined in Articles 13, 14, 15 and 21 of the Indian Constitution. The secular character is one of the hallmarks of the basic structure but there is discrimination with the electorates of Jammu region in respect of the weight of their votes on the basis of religion and domicile. Hindus are of minority status in the State but in Jammu region they are in majority. Instead of protecting their minority status the value of their votes have been devalued. As an instance, the electorates strength of Gandhi Nagar and East Constituency of Jammu region of the year 2008 are taken as an example in contrast with two constituencies of Srinagar City (Khanyar and Habakadal) the total of the two constituencies of Srinagar City remains behind by 45,062 electorates of single constituency of Gandhi Nagar. Same is the case of Jammu City East Constituency. To add fuel to the fire, appropriate equality in the voice of every voter irrespective of his/her religious faith in the Jammu region remains a cry in the wilderness. The fundamental right of equality without any justification or classification runs contrary to the Preamble of the Constitution and basic fundamental structure. In other words, the electorates of Jammu region can claim equal or more weight of their votes because their case falls within the bounds of criteria laid down in Section 4 of the Act as they have more population in many defined areas of their respective Assembly Constituencies. It is worthwhile to mention here that State Legislature and Indian Parliament in the Centre have the powers to amend their Constitutions as well as Statutes falling respectively within their specified domains. This power is restricted to the extent of not rendering any fundamental right as redundant, extinct or abrogated but in the present case, the State Legislature has exercised this power without any justification or classification and thus, basic features of the Indian Constitution under above said heads (c), (m) and (n) stand denied. The Constitution does not allow any such amendments under Article 368 of the Constitution which goes against any of the basic feature. On the same basis the principle of free and fair elections as envisaged under above stated head (q) and (r) can also be not altered. The above stated heads (q) and (r) are to be given harmonious construction in contrast to contradictory construction. The conclusion arrived at by the Hon’ble Supreme Court in para 31 of the judgment in appeal is the result of not presenting the case on true facts. This discussion would remain incomplete without referring to the Constitutional scheme on the basis of historical facts when Constitution of J&K State was enacted because in the judgment in appeal, historical facts of Sikkim State were taken into consideration by allowing the reservation on less number of voters as a whole.
The Preamble is clearly an adaptation of the Preamble of the Constitution and the Preamble of the State Constitution besides other essentials has laid stress on EQUALITY, FRATERNITY. In this manner also, the case of the domiciles of Jammu region is also fortified and the amendment affected in Section 47 (3) of the State Constitution which besides in contradistinction with Section 50 of the State Constitution renders the amendment unconstitutional. The principles of free and fair elections have also been recognized as one of the basic feature. Both the basic features (r) and (q) as stated above have to be read not to supplant but supplement each other. In view of the discussion made above, the law laid down in above referred RC Poudyal’s case does not apply in all fours to the factual and legal issues involved in this case and the need of the hour is to re-agitate the points raised in this write-up in a proper forum.
At the end, it is stated that in a democratic polity which is governed by written Constitution and where rule of law is paramount. Judiciary is regarded as sentinel on the qui vive not only to protect the Fundamental Rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the hope and faith of the people in the constitutional system are not atrophied.
Liberty of thought, expression, belief, faith and worship.
(The author is former Justice of J&K High Court. Member Governing Council of National Foundation for Communal Harmony Govt. of India (NFCH).)
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