AN APPARENT discrepancy between the Union Government Order establishing the Boundary Commission and the J&K Reorganization Act could cast a shadow over the reshuffling of assembly seats in the state, a key element in reviving the political process there.
The J&K Reorganization Act 2019, under Section 60(1), gives the Electoral Commission (EC) the task of demarcating seven additional seats for the 83-member J&K Assembly, in addition to deciding on the reservation for the SC and ST communities.
However, seven months after the passage of the J&K Act, by an order dated March 6, 2020, the Department of Justice assigned this task to the three-member Boundaries Commission headed by retired Supreme Court Justice Ranjana Desay.
The law, which revoked J&K’s special status and divided the state into two union territories, calls for a boundary commission – under section 62(2) – only for future “readjustment” of the seats established by the EC.
Legal Secretary Anoop Kumar Mendiratta did not respond to Indian Express’ email seeking comment on the discrepancy.
Additional Secretary Reeta Vasishta directed this reporter to JS (North East) Interior Ministry “since this ministry administers the law you are referring to”. Joint Secretary Piyush Goyal, in charge of North Eastern States at the Interior Ministry, was not available for comment.
The Chief Elections Commissioner, Sushil Chandra, is a member of the new Boundaries Commission and the EC is providing the secretariat for the current exercise at J&K. However, the EC and the Boundary Commission are two separate entities. The first is a permanent constitutional authority and the second is dissolved once the delimitation exercise is completed.
Desai and the EC spokesperson did not respond to requests for comment, but The Indian Express has learned that the EC has discussed the issue internally and concluded that the government order does not violate the reorganization of J&K since article 62 of this law authorizes the government anyway to establish a boundary commission.
That’s not the case, said SK Mendiratta, EC’s former senior legal adviser. He was also legal adviser to the Boundaries Commission headed by Justice Kuldip Singh which redrew the boundaries of all parliamentary and assembly constituencies in the country except J&K in an exercise conducted from 2003 to 2008.
“The Boundary Commission was set up by the Ministry of Justice, and he knows the law best,” Mendiratta said. “But from a first reading of sections 60 to 64 of the J&K Reorganization Act 2019, it appears that the initial division of J&K’s UT into 90 Assembly seats is the responsibility of the EC under the 60. It further appears (from s. 62) that any readjustment in the constituencies established by the EC should only be taken up by a boundary commission after the first census taken after the year 2026.”
Incidentally, it was Mendiratta who first reported the legal infirmity in the Justice Department’s official gazette notification of March 6, 2020, in a letter written to the three election commissioners last year.
He had pointed to this order for the creation of a boundary commission for Arunachal Pradesh, Manipur, Assam and Nagaland, even though a 2008 amendment to the Representation of the People Act 1950 clearly states that the delimitation in the four northeastern states, when it takes place, would fall under the jurisdiction of the EC.
Therefore, any delimitation exercise in those states by the new Delimitation Commission would have been “declared void by the courts,” Mendiratta said in his letter.
Interestingly, eight months later, the government dropped the demarcation for the four northeastern states. In an order issued on March 3 this year, the Department of Justice extended the Boundary Commission’s mandate for J&K for another year, but excluded the Northeastern states from its mandate.
The J&K Boundary Commission has already done much of its work. He held meetings with District Commissioners and heard representations from political parties and other stakeholders. During the four-day visit to UT, the Commission met with 280 delegations comprising almost 800 people and heard their suggestions on the demarcation process. Representatives of all regional political parties, except the PDP, met the Commission to give their opinion.
Delimitation is the act of redrawing the boundaries of Lok Sabha and Assembly constituencies to represent population changes and is done on the basis of the previous census.
The delimitation is crucial to relaunch the political process at J&K. In his first sensitization meeting with key J&K political leaders last month, Modi had sought their cooperation in carrying out the delimitation exercise that would eventually lead to an election. In his Independence Day speech last week, he stressed that preparations for holding J&K Assembly elections and redrawing constituencies are well underway.