Why Proposals For New Constituencies in J&K Spur Fears Of Muslim Marginalisation

07 Jan 2022 12 min read  Share

The principle that a state’s population determines the number of elected representatives remains the bedrock of India’s constitutional system. But this principle has been discarded by a commission proposing—a decade ahead of the original schedule—more legislature seats for Hindu-majority Jammu in Muslim-majority Jammu and Kashmir, a process called into question, in any case, because J&K’s 2019 reorganisation is pending before the Supreme Court.

A file photo of women voters standing in a long queue for their turn to cast their votes at a polling booth in Budgam, Srinagar/PHOTOGRAPHS CREATIVE COMMONS

Srinagar: Over the last six decades, Muslim-majority Kashmir’s share of seats in the erstwhile legislative assembly of Jammu and Kashmir (J&K) increased 9%, while Hindu-majority Jammu’s increased 43%, according to Election Commission of India data.

These data provide a historical perspective to the latest controversy in J&K over a long-standing Indian constitutional proposition of proportional representation, in a region that has among India’s lowest fertility rates and where land and other rights have been gradually eroded in Kashmir. 

The fact that India’s controversial new Parliament building provides for 888 seats in the lower house, the Lok Sabha, a 66% increase from the current 535, reinforces its traditional approach to such representation. 

Indeed, according to a 2019 projection by Milan Vaishnav and Jamie Hintson of the Carnegie Foundation, a think tank, if every state were to retain its proportional representation, by 2026 the Lok Sabha would need to have 848 representatives, making it the largest elected house in any country. 

The periodic exercise to redraw parliamentary and assembly constituencies by population and geographical boundaries is called delimitation. It is an exercise fraught with long-term implications for the distribution of political power and for that reason, has been frozen for 19 years nationally and in (J&K) for 26 years and uses data that is 11 years old. 

Even though southern states now fear they will be crowded out by Hindi-speaking states with higher fertility rates—as the latest health data released in November 2021 indicate—it is apparent the principle that a state’s population will determine the number of elected representatives will remain the bedrock of India’s constitutional system. 

That principle, politicians and constitutional experts have argued, appears to have been discarded for J&K in an exercise that, they said, is in any case unconstitutional because the Supreme Court has yet to rule on the controversial removal of its special constitutional status on 5 August 2019 by the revocation of Articles 370 and 35A, the latter in particular preventing demographic transformation by preventing outsiders from buying land. 

If J&K did have an elected government, the delimitation would only have occurred a decade from now.

‘Disempowerment Of Muslims Major Aim’

On 20 December 2021, a Delimitation Commission headed by former Justice Ranjana Prakash Desai of the Supreme Court recommended, to widespread outrage in the union territory, that Jammu—with a lower population and fewer people represented by each legislator—get five new assembly constituencies and Kashmir one. 

Muslim-majority Kashmir accounted for 56.15% of the population of the former state of J&K, according to the 2011 census, yet the Commission not only recommended more seats for Hindu-majority Jammu but proposed that each legislator in Jammu represent 125,082 voters compared to 146,563 voters in Kashmir.

Apart from widespread opposition in J&K, the government of the union territory, now controlled directly by New Delhi, confined three former chief ministers to their homes, so they could not protest the recommendation. 

The common allegation: this is the latest step in an effort that reflects past fears (here, here and here) that Muslims would be first reduced to a legislative minority and eventually a real minority. Since 2019, these fears have been exacerbated by government moves to allow outsiders and the armed forces to take over land without local consent, open jobs to outsiders, and curb protest, the media and free expression.

“The disempowerment of Muslims is a major target in this entire exercise,” said Showkat Hussain, PhD, a law professor. Others referred to constitutional violations at a time when the status of Jammu and Kashmir Reorganisation Act 2019, which allows the delimitation exercise, is pending with the Supreme Court.

J&K had its own constitution before the special status of the region was annulled without the consent of its legislature and the erstwhile state downgraded into two federally union territories on 5 August 2019: J&K and Ladakh.

“The whole exercise offends constitutional values and constitutional propriety,” said retired Justice Hasnain Masoodi of the J&K High Court. Masoodi, who is an associate member of the Delimitation Commission and a member of Parliament argued the Commission had “bypassed” the Delimitation Act of 2002 by preempting the process before scheduled time. 

The history of the delimitation process in India indicates why the principle of proportional representation remains paramount.

Delimitation Twists & Turns

According to Article 81 of the constitution, introduced in 1949, each state would get seats in the Lok Sabha, the lower house of Parliament, in proportion to its population, representing constituencies largely equal in size, and the number of elected members would be limited to 550. 

This allocation was to be revised every decade, according to Article 82,  depending on population changes revealed after the census. Delimitation, or creating new voting districts, was to determine seats in state legislative assemblies and the size of parliamentary and assembly constituencies.

But 45 years ago, during the Emergency promulgated by former Prime Minister Indira Gandhi, the government first suspended, through the 42nd amendment to the constitution, the delimitation exercise until after the 2001 census. 

In 2002, the 84th amendment during the government of Prime Minister Atal Bihari Vajpayee further deferred the delimitation of constituencies to 2026, which effectively meant till after the next census in 2031. 

In 2003, the 87th amendment allowed the redistribution of assembly seats within states, while disallowing an increase in the number of seats. 

On 6 March 2020, the government of India constituted a Delimitation Commission to redraw the Lok Sabha and assembly constituencies of Jammu and Kashmir, Assam, Arunachal Pradesh, Manipur, and Nagaland, headed by former Justice Desai. 

Desai visited Jammu and Kashmir from 6 to 9 July 2021—after the Commission’s term was extended by one year in view of the coronavirus pandemic—to hold talks with political parties, district officials and other stakeholders and gather “first-hand information” on the process of redrawing legislative constituency boundaries. Its last meeting, with associate members included, was on 20 December 2021.

Opponents Who Were Once Participants

“GOI trumpets scrapping Article 370 & dismembering J&K throughout the country but is deeply paranoid and intolerant when people of J&K want to protest against its disempowerment,” People’s Democratic Party president Mehbooba Mufti tweeted after being confined to her house on 1 January 2022.  “For the umpteenth time, we’ve been placed under house arrest for trying to organise a peaceful protest.”

“Talk about a lawless police state, the police have even locked the internal gate connecting my father’s home to my sister’s,” tweeted National Conference working president Omar Abdullah, another former chief minister.  “Yet our leaders have the cheek to tell the world that India is the largest democracy, hah!!” 

But Abdullah’s opposition to the Commission is ridden with contradictions.

The National Conference is among those that filed a public interest litigation against the Reorganisation Act, but the party’s three parliamentarians, including Justice Masoodi, party president Farooq Abdullah and Muhammad Akbar Lone, after initially boycotting Commission’s meetings, participated in the latest meeting on 20 December.

“Participating in this Commission will be tantamount to accepting the events of August 5, 2019, which the NC is unwilling to do,” said a National Conference statement of 30 May 2021.

The next month, the National Conference participated in a Commission meeting attended by 20 J&K deputy commissioners and called to discuss how to make assembly seats more geographically compact. The People’s Democratic Party boycotted the meeting.

The last delimitation exercise in the erstwhile state was conducted by a commission headed by former Justice K K Gupta in 1995, when J&K was under President’s rule at the peak of armed insurrection.

The Decline Of Kashmir’s Legislative Representation

As we said, Kashmir’s legislative representation has been declining even before the latest controversy.

Kashmir’s share of assembly seats in the J&K assembly increased from 43 to 47 over the last six decades, while Jammu’s share rose from 30 to 43, according to our research. This is how Kashmir’s share of seats fell over the years:

- In 1962, J&K had 75 assembly constituencies, with 43 seats for Kashmir, 30 for Jammu and two for Ladakh.

- In 1972, J&K still had 75 constituencies. But Kashmir’s seat share had fallen by one, Jammu’s had risen by one; Ladakh stayed the same.

- In 1987, J&K’s assembly added a seat, which went to Jammu, raising its total to 32.

- In 1996, seven seats were added to the J&K assembly: five went to Jammu, four to Kashmir and two to Ladakh.

In 2021, the delimitation exercise was supposed to increase the number of legislative assembly seats to 90, excluding Ladakh since it was now a union territory. So, seven seats were added to J&K, with, as we said, six going to Jammu.

Before 2019, the J&K government and the legislative assembly had substantial power over state delimitation, and that is how in 2002, the then government of chief minister Farooq Abdullah froze delimitation until 2026, after a J&K assembly decision, in accordance with a similar freeze ordered by the Vajpayee government.

If J&K had an elected government, said Ishaq Qadri, a two-time advocate general of the state, delimitation could only have been undertaken in 2031.

“What is happening in Jammu and Kashmir now is the result of 5 August (2019) decisions of the Parliament of India,” said Qadri. “Now, the Delimitation Commission has discretion about what they do. (But) if we take the population of the last census into account, Kashmir had a population of 69 lakh (6.9 million) and Jammu 52 lakh (5.2 million). So, Kashmir should have more seats than Jammu.”

Another contentious proposal is that nine of 90, or 10% of seats be reserved for scheduled tribes and seven or 7.77% for scheduled castes, something that has never happened in J&K.

There is no constitutional provision for carving out such constituencies, said Qadri, citing the case of Jammu East, which the Commission has proposed as a constituency reserved for scheduled-caste representation, even though scheduled castes constitute no more than 20% of the population.

“It is a fraud, a legal fraud,” said Qadri, adding that the entire delimitation exercise “aimed at ensuring a majority of Jammu division in the assembly”.

Masoodi, the former J&K High Court Justice and National Conference MP, said that an interim draft report shared with members at the 20 December  meeting does not officially identify constituency locations, leaving that for the second phase, a schedule for which has not been fixed. But the broad contours are evident.

New Constituencies & The Hindu Nationalist Agenda

Article 14 has learnt that among the six additional constituencies in Jammu— one each in Kathua, Samba, Rajouri, Reasi, Doda and Kishtwar—two are Hindu dominated, one is predominantly Muslim population, and three have mixed demographic profiles, but are Muslim majority.

According to 2011 census data, Kathua and Samba are 87.6% and 86.33% Hindu, respectively, while Reasi is 62.7% Muslim. Doda is 45.77% Hindu; 53.82% Muslim; Kishtwar, 40.72% Hindu, 57.75% Muslim; and Rajouri 34.5% Hindu; 62.7% Muslim.

“What is staring Kashmir in the face now is the fear of a demographic majority becoming a political minority,” said Hussain, the law professor.

That demographic marginalisation is a stated Hindu nationalist ambition, made evident in a 2 August 2009 issue of the Organiser (quoted here) the mouthpiece of the Rashtriya Swayamsevak Sangh (RSS), the parent organisation of India’s ruling Bharatiya Janata Party (BJP).

“A Hindu majority in every region of the country is an implicit guarantee of its integrity, civilizational vitality and economic prosperity,” wrote S Gurumurthy, an RSS ideologue. “Had India followed the policy which Chinese (sic) had adopted in Xinjiang, conquering back Kashmir instead of contracting (sic) under Article 370 which prevented (sic) rest of Indians from migrating to Kashmir, today Kashmir would have demographically integrated with India.” 

“The lesson for India,” wrote Gurumurthy, was “demographic balance… in tune with the national mainstream” was “the guarantee for the nation”.

Over the years, the BJP and its allies have claimed (here, here and here) that Hindus in J&K have been electorally discriminated against by Muslims.

The data do not back that claim. In the last assembly of J&K, out of 87 MLAs, 52 of 87 MLAs were Muslims, 33 Hindu and 2 Buddhist. Hindus accounted for 28.44% of the population, and 37.93% of elected MLAs. Muslims, 68% of the population, accounted for 60% of MLAs, and Buddhists, less than 1% of the population, had 2% of assembly seats.

“Over the years BJP has stated that in J&K Hindus have been discriminated against by the Muslims in the electoral arena,” wrote Ellora Puri, a political science professor at the Jammu University in August 2018. “The data suggest otherwise.”


Falling Fertility & Future Fears

Muslim fears revolve around eventually being not just marginalised legislatively but in whole numbers. 

In 1941, the Muslim population of united princely state of J&K, including parts now under Pakistan and China, was 77.11%, wrote political scientist and professor of international and comparative politics at the London School of Economics, Sumantra Bose in his 2003 book “Kashmir: Roots of Conflict, Paths to Peace.” When the state was divided in 1947, the state was still 72% Muslim

According to census data, that proportion has stayed largely the same over half a century: In 1951 there was no census in J&K; in 1961, 68.30% of the population was Muslim; in 1971, 65.85%; in 1981, 64.19 percent; in 1991 there was no census; in 2001, 66.97%; in 2011 68.31%.

In specific areas in Jammu, Muslim proportions have crashed, such as Udhampur, which went from 43.15% Muslim in 1941 to 10.77% in 2011; and Jammu district, where Muslims went from 39.59% in 1941 to 7.03% in 2011. These declines are attributed to massacres of Muslims in 1947. 

In addition, J&K’s fertility rate is now 1.4, among India’s lowest, which means the region’s population is set to contract over the coming decades, making the issue of representation only more acute, reflected in the anxieties of Kashmiris.

Hussain said it was important for the delimitation commission to consider the “uniqueness” of J&K, the history of prior delimitations, issues of regional representation issues, and the rules that previous delimitation commissions had followed.

Former Union Minister and senior Congress leader Saifuddin Soz said the delimitation process reflected a “conspiracy hatched by the RSS” to change the demography of the State and ultimately install a Hindu chief minister in J&K.

Senior Congress leader Salman Soz called the delimitation commission proposal “brazenly anti-Kashmir”. He told Article 14 the proposal only sowed more divisions between Jammu and Kashmir and deserved to be “thrown into the dustbin by any self-respecting Kashmiri politician”. 

(Muhammad Rafi is an independent journalist based in Srinagar.)