Author: Lavanya KS, IV year of B.A.,LL.B. from Chennai Dr. Ambedkar government law college pudupakkam.
Co-author: Kaarkuzhali E, IV year of B.A.,LL.B. from Chennai Dr. Ambedkar government law college pudupakkam.
Abstract
In this article, we are going to see about the two newest Union Territories of India that are still not very satisfied with their status quo and both of them are demanding changes that will suit their politics. After revoking the special status of Jammu and Kashmir in August 2019. Jammu and Kashmir and Ladakh are the two new union territories. Here the first delimitation process in Jammu and Kashmir was still long pending and the delimitation commission finally gave their report. The main issues in the ongoing session of parliament are Ladakh's Member of Parliament seeking that Ladakh should also be included in the part of the sixth schedule of the Indian Constitution. The primary work of the delimitation commission was to redraw territorial boundaries for elections based on changing patterns of the population. Under Article 82 of the Indian Constitution, a delimitation act was enacted after every census. The President will appoint a delimitation commission in collaboration with the Election Commission of India. The Constitution of the delimitation commission is retired supreme court judge, chief election commissioner, and respective state election commissioners. The central government planned for a delimitation exercise for both Lok Sabha seats and the seats of the Legislative assembly. They appoint a delimitation commission in Jammu and Kashmir in March 2020. Since it is not able to prepare a report which is why elections in States are still pending. On December 24, 2021, they finally gave the report. In the sixth schedule of the Indian Constitution, the Administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram are to safeguard the rights of the tribal population in these states. This schedule allows greater political autonomy in tribal areas of the northeast part of India. There is a body called the Autonomous District Council which has a certain degree of autonomy to frame local laws for the interest of tribal people.
KEYWORDS:- Delimitation, sixth schedule, delimitation commission, census, seats in the legislative assembly, Jammu and Kashmir, Ladakh, two new UTs, MPs, and tribal areas.
INTRODUCTION
The delimitation exercise means redraw of electoral boundaries or electoral constituencies after every census. The delimitation was done in the years 1951, 1962, 1973, 2001 and finished in 2008. After every census under article 82 of the Indian Constitution, there has to be delimitation. If the population increases the number of seats in the legislative assembly also increases. The whole purpose of delimitation is Uniformity and the value of a vote in Indian in one place is equal to another place. The census was administered in 1951 - 494 seats, 1962- 522 seats, 1973- 543 seats and that's how the number of seats in Lok Sabha was expanded. But when the delimitation was carried out in 1973 the southern states started protesting because southern states are controlling their population and northern states are increasing their population. So it's a major drawback for the southern part of the States. The petition was filed to stop the delimitation process and given to the Prime Minister. At that time the PM was Indira Gandhi and she asked to freeze it and there should be no delimitation until the population stabilized in the country. By 42nd Constitutional Amendment Act, 1976 contended that there should be no delimitation till 2001 and it is the period of Emergency as well. Even delimitation banned the no.of.seats should not increase till 2026. After 2001 delimitation happened but it didn't increase the legislative Assembly seats. It was carried out in 2001 and completed in 2008. When the delimitation is done but increasing in seats is not done.
DELIMITATION PROCESS IN 2001
The objective of internal delimitation is to provide an increase in representation to SC/STs in Lok Sabha and Legislative Assembly seats are not reserved in Rajya sabha. When the 2001 census was carried out the population of SC/ST were increased in proportion to their population and the seats also increased. Here the total number of seats did not increase but the number of seats reserved for SC/ST those seats was increased.
At least within a state, there should be equality. For instance, the 'X' state has 7 constituencies in one constituency - 20 lakh voters and another constituency- 5 lakh voters. In both the constituency it's represented by one MP and there lies discrimination.After every census constitution mandate, there should be delimitation conducted thrice in the past before 2001. It led to the increase in the number of seats but northern states have the benefit and southern states have disadvantages. That's why there is a freeze in the process. Another amendment said no delimitation till 2031. Now the delimitation was carried out after 2026 and the number of seats didn't increase and was frozen until 2026.
JAMMU AND KASHMIR DELIMITATION PROCESS
In the exercise of 2001, there was no increase in seats but seats reserved for SC/ST arose. There were four states Assam, Nagaland, Arunachal Pradesh, and Manipur not carrying out delimitation in 2001 and 2008. These states approach the Gangaoti High court in Assam. They contended that they don't want delimitation to be carried out based on census 2001 because Assam has a problem with migration.
Assam Accord year 1985 signed by the Central Government in the period of Rajiv Gandhi as Prime Minister. The Representation of the state government in Assam, the representative student protestors, All Assam Student Union all those who come to Assam before 1st January 1966 have residence of Assam and citizens of India. But those who came between 1st Jan 1966 - 25th March 1971. They are residents of Assam and citizens of India. But no voting rights for 10 years.
Don't allow the contest for election who came to Assam on or after 25th March 1971 identify them to arrest and deport them that's why they are asking for NRC.
In 2001 the basis of the census for delimitation in Assam protested and approached the high court of Gangaoti with other states. The president said 'Not to have delimitation in these four states and Jammu and Kashmir.
Now 2019 J&K special status was revoked before their constitution carried out a delimitation and it became UT, the entire Indian Constitution applies to J&K. Now under the Indian Constitution, there should be a delimitation said by Jammu and Kashmir Reorganization Act, 2019.
REPRESENTATION OF PEOPLE ACT, 1950
In this act, the allocation of seats in the legislative assembly and legislative council is mentioned. This Act also talks about delimitation and amendment in the year 2008 providing for delimitation exercises to be carried out in these four states(Assam, Arunachal Pradesh, Manipur, Nagaland). "Not by delimitation commission but by Election Commission"
In 2019, the government of India issued an order to set up a delimitation commission. It is an independent and statutory body. If the delimitation commission gives its award, redraws the electoral boundaries in the country. "This award cannot be questioned by the court of law". Once an award is given, the delimitation commission is disbanded which means it's not a permanent body. Delimitation in 2019 provides delimitation in four states and J&K. Some legal experts later said that it goes against the President's order when the Representation of People Act amendment says that delimitation is carried out by the Election Commission, not by the delimitation commission.
There is a debate and the concern arises who will administer delimitation in these four states?
The reason behind this is due to the covid 19 pandemic and reorganization of territorial boundary they ask for an expansion only for Jammu and Kashmir but delimitation was stopped and discarded in four States. This was discarded because the election commission will conduct delimitation not by delimitation commission.
It has a chairperson who is a retired judge of the supreme court and chief election commissioner and state election commissioner. Lok Sabha members in Jammu and Kashmir are part of the delimitation commission as associate members they don't have the right to vote only participate in meetings. The 84 th Constitutional Amendment Act of 2002 put a freeze on delimitation. The current boundaries are drawn on the 2001 census and the number of Lok sabha seats and state assembly seats have frozen based on the 1971 census.
DELIMITATION REPORT ON J&K
Finally, the report on the delimitation of Jammu and Kashmir was done. The delimitation commission suggested six more assembly seats given to the Jammu segment which increases from 37 to 43. On other hand, one seat was given to the Kashmir part which increased from 46 to 47. The delimitation commission report was deciding the number of seats not just based on population; it is also based on other factors such as inadequate communication, lack of public convenience due to their excessive remoteness, and inhospitable conditions on international borders'.
There are also a lot of protests from local parties in J&K, especially in the Kashmir area. They already decided the number of seats in J&K but the question was which districts would the seat fall in? They also suggested reserving the 7 seats for SCs and 9 seats for STs for the first time. In the same way, they decided several seats were reserved for SC/ST but they have not been told which district specifically reserved for SC/ST seats.
There was quite a bit of unrest in the valley once again where local parties alleged the central government was trying to reduce their powers as much as possible. They have tried this decision as divisive and unacceptable. Jammu and Kashmir's delimitation process has been differing as compared to other parts of the country. Delimitation of Lok sabha seats in J&K was according to the J&K constitution and J&K representation of people act, 1957. The last exercise was conducted under the chairmanship of Justice K.K.Gupta when the state was under the president's rule it was done based on the 1981 census because no census was done in 1991 after that state government passed a law and froze the process until 2016. Now in 2019 when the state was turned into Union Territory and the delimitation commission was headed by Justice Ranjana Desai and it has five members of MPs from J&K also working as associate members.
IMPORTANCE OF THIS PROCESS IN J&K
This process is important and it will redraw the boundaries in such a way that the population of the state is fairly divided. Justice Ranjana Desai has been favored by the government for multiple important postings. For example- in 2018 the government of India had set up a search committee to appoint the first-ever Lokpal in India. This search committee was given the responsibility to shortlist a few names and send them to the selection committee then it will appoint a Lokpal. The head of this search committee was Justice Ranjana Desai. In March 2020 she became the head of the delimitation commission of India and 5th women judge in the Supreme Court.
DEMAND OF LADAKH TO ADD IN 6TH SCHEDULE
Before the Jammu and Kashmir Reorganization Act of 2019 was passed, Ladakh had a three-tier Administrative system: Central government, state government, and local level (Autonomous Hill Development Council of Leh and Kargil). Although it's not part of the sixth schedule, safeguards are still given to tribal people of Ladakh areas. There is a lot of fear for them to have rights in their land. The power is within the Lieutenant Governor; it feels the local people's liberation is interfered with by Lt.Governor. Right now there is no protection of lands and jobs in Ladakh.
Even the Union Minister of Tribal Affairs in 2019 made a recommendation that Ladakh should be included as a Tribal area in the 6th schedule. But it was not done. UT has two of its Hill councils (Leh and Kargil) but not under 6the th schedule. They have the power to obtain local taxes, parking fees, and land revenue.
The National Commission for Scheduled Tribes also recommended the UT of Ladakh should be placed in 6th the schedule. The reason is 90% of people living in Ladakh are tribal people. The primary STs in Ladakh are Balti, Beda, Bot, Brokpa, Changpa, Garra, Mon, and Purina. They have a distinct cultural heritage that needs to be promoted and preserved.
Once Ladakh becomes part of the 6th schedule it will give a boost to the democratic rights of the people and have its own ADC ( Autonomous District Council). The major block is as per Constitution the sixth schedule is specifically for northeastern states. It requires a constitutional amendment to add the place of Ladakh in the 6th schedule. The government has been incredibly careful placing states on the 6th schedule. For example, the states like Arunachal Pradesh, Manipur, Nagaland have a lot of tribal people but they are not in the sixth schedule. If the government put Ladakh in the 6th schedule then these states also came in and demanded the same.
POWERS OF THE STATES IN THE SIXTH SCHEDULE
ARTICLE 244 of the Indian constitution provides for the formation of Autonomous Administrative divisions called Administrative District Council in the sixth schedule areas. These have Legislative autonomy, judicial autonomy, and administrative autonomy. Governor empower to create an autonomous district and it has 30 members, 4 nominated by the governor and 26 were based on adult franchises. They hold office for 5years. The council has the power to make laws on land, forests, canal water, inheritance of property, marriage shifting cultivation, etc...it requires the assent of the governor. In the same way, it will give a lot of autonomy to Ladakh if it is put into the sixth schedule.
CONCLUSION
The delimitation commission was finally reported on the Jammu and Kashmir delimitation process and the report had already decided the number of seats but they did not decide on which district the seats would fall in. At the same time, the situation in Ladakh is also not settled and Ladakh still demands statehood and inclusion in the sixth schedule. In short, the two newest Union Territories of India are still not very satisfied with the status quo and both of them are demanding changes that will suit their politics.
IF YOU CANT CHANGE THE STATUS QUO, MAKE THE STATUS QUO, CHANGE.
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