Delimitation not permissible under constitution and law: Masoodi

Justice Hasnain Masoodi, National Conference leader and elected Member Parliament from 3-Anantnag Parliamentary Constituency Friday said that democracy is the government of the people by the people and for the people is the oft repeated quote of Abraham Lincoln.

In a statement issued to KNS, Masoodi said “The people run the government through their representatives elected through adult franchise under supervision by an independent and impartial authority. To give the elected government a true representative character with sense of participation to one all, it becomes necessary to divide the country and each of its constituent states into segments on the basis of fair and objective criterion, giving each segment or constituency a right to elect a member to the House of People or the State legislature, as the case may be. The number of the segments or constituencies cannot remain static as growth in population, urbanisation and like factors necessitate review or readjustment of these segments at regular intervals. This exercise is called delimitation. Ideally this exercise is to be undertaken after every ten years after the results of census are notified. The constitutional provision in this regard, however is recommendatory and exercise has been undertaken on a few times during last seventy years. Having said that, the reports that MHA is toying with the idea of undertaking delimitation in Jammu and Kashmir before much delayed and overdue Assembly elections is a cause of concern as the exercise would be without legal authority and in gross violation of Constitution and law.”

“Section 47, Constitution of Jammu and Kashmir provides for readjustment of ‘extent and boundaries’ of the constituencies in accordance with law. The Jammu and Kashmir Representation of Peoples Act 1957 (Sec. 3) is the law enacted to govern the matter. The Proviso added to Section 47 of the Constitution by 29th Amendment of 23rd April 2002 has frozen delimitation exercise till the results of first census taken after 2026 are published. Corresponding amendment has been made in Sec 3 in Representation of Peoples Act as well. It is not that the amendments have come from nowhere. These were preceded by amendment to Articles 82 and 170 by Constitution 84th Amendment of 2001 whereby delimitation was frozen till results of 2026 were published. It follows that not only in Jammu and Kashmir but in all the states as well as in case of the House of People, the delimitation is frozen in effect till 2031 i.e the results of 2030 census are made public,” he said.

Masoodi said, “Once the delimitation is frozen as regards all the states, there is no reason to single out Jammu and Kashmir for such an exercise more so when the Constitution of Jammu and Kashmir does not permit delimitation and the Constitutional mechanism to pave way for delimitation is not in place. The delimitation at present can be undertaken only after amendment to section 47 of the Constitution. The amendment can be effected only by the elected legislature of the state with requisite majority. The governor does not have power to amend the Constitution. In terms of Article 356 that has come into play after the imposition of presidents’ rule, the legislative power can be exercised by the Parliament, if so declared by the president. In terms of Article 357 the Parliament can confer on the president power of the state legislature to “make laws”. The power therefore is to remain restricted in both cases i.e the Parliament and the President to “make laws”. Neither the Parliament nor the President have power to amend the Constitution of Jammu and Kashmir in exercise of powers under Article 356 and 357. The Constitution and legal position as on date therefore would not permit delimitation. Such an exercise, can be undertaken only after the elections are held, state assembly and a duly elected government are in place and necessary amendment is made in Section 47 of the Constitution of Jammu and Kashmir and Section 3 Jammu and Kashmir Representation of Peoples Act 1957, pre-poning the delimitation. Any effort of delimitation would be a misadventure and offend the Constitution and the Representation of Peoples Act.” (KNS)

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