Supreme Court legitimising a dodgy delimitation?

The ‘letter of the law’ and legal arguments are often dense and incomprehensible to most people. It’s a pity, though, that these rulings, even those coming from the higher judiciary, and often of great import, seem to defy popular understanding.

In one such recent ruling, the Supreme Court dismissed the year-old challenge to the delimitation of constituencies in Jammu and Kashmir. The petitioners’ argued that the total number of seats in all other state assemblies as well as the Lok Sabha are frozen till the first census after 2026 and the exceptional exercise in J&K, conducted in great haste, was therefore suspect. But the SC bench clearly didn’t think so.

The Union government’s plea that it was merely interested in quickly restoring the democratic process in the erstwhile state—now a Union Territory—was accepted at face value. The court also accepted the argument that the government had the authority to constitute a delimitation commission.

When it was pointed out that the notification in 2020 had initially covered several states of the Northeast, including Assam, Arunachal Pradesh, Manipur and Nagaland, but a subsequent notification had dropped them, the government argued that these were ‘disturbed states’, hence dropped.

More importantly, the Supreme Court ruling appears to have relied on the petitioners’ failure to challenge the Jammu & Kashmir Reorganisation Act, 2019, on the basis of which the delimitation commission was set up in 2020. Without challenging the parent Act, the court appeared to be saying, the challenge to the delimitation exercise had no legs to stand on.

What is surprising is that the court itself acknowledged that the challenge to the Reorganisation Act is still pending before another bench of the top court. Surely the SC’s own failure to address challenges to the state’s reorganisation cannot be laid at the door of the petitioners who challenged the delimitation? How is it that the older petitions challenging the revocation of Kashmir’s special status and reorganisation of the state into two Union Territories are yet to be heard but a subsequent challenge to the delimitation has been heard and disposed of?

Shouldn’t the court have first considered the legality of the reorganisation?

It’s worth remembering that there has been no election in Kashmir since 2018; the erstwhile state came under President’s Rule in June 2018. The state Assembly was initially kept in suspended animation and then controversially dissolved in August 2019. With no election and no state Assembly, the people of Jammu and Kashmir have had no real opportunity to express their opinion on any of these unilateral actions by the Centre.

The Union government, however, argued that the delimitation commission had invited objections and the people and political parties given a number of opportunities to record their objections, which, it added, they did not avail.

The government also argued that since the delimitation exercise had been completed and notified in the gazette, it had acquired the force of law, and that any challenge to the 2020 notification setting up the delimitation commission was, in effect, infructuous. To be fair, the court couldn’t have gone into the political motives of the Union government, which to most people in Kashmir is highly suspect—and the real point.

To most people, the delimitation commission’s decision to increase the strength of the assembly from 107 to 114 seats (including 24 notional seats in Pakistan Occupied Kashmir) makes no real difference. What really matters is the reorganisation of constituencies.

If the intention really was, as the Centre claimed, to restore democracy, the assembly elections could well have been held for the same seats and constituencies that existed before the delimitation exercise. Seven fewer seats couldn’t possibly have been the hurdle to that process. Ask why the delimitation had to happen first, and you’ll get closer to the truth.

Past the arguments made in court and the technicalities of what was within the ambit of the court, the answer to that question lies in the demographic distribution of Kashmir and the chances that its thoroughly disenchanted majority will by fair means vote for the same people who have violently taken away their rights and privileges