,Ever since the establishment of the Delimitation Commission of India in respect of Jammu and Kashmir in March 2020, the issue pertaining to the representation of the Kashmiri Pandits, currently living in exile due to terrorism in the valley, remained alive and hot. This author was instrumental along with a number of community activists and intellectuals who took up this issue with the Commission ab initio and pursued it vigorously all along. A number of meetings took place on the subject with the full Commission over the last more than two years, though a large volume of time got wasted due to the Covid19 conditions.
Memoranda, letters, communications with the relevant documents and other necessary reports were submitted to the Commission at various intervals of time during the last one and a half year. There was a protracted communication with the Delimitation Commission on the issue coupled with three important meetings. The first meeting held with the Commission on 26th March 2022 at its office in New Delhi was indeed a very good experience. It was in this meeting in which the Chairperson of the Delimitation Commission, Justice (retd.) Ranjana Desai made a statement saying that ‘there was substance in the presentation made on the subject by you and the Commission may be forwarded some more documents in this connection’.
The current Chief Election Commissioner, Sushil Chandra, who remained a member of the Commission also took keen interest and desired to have certain documents which were submitted to the Commission in their previous visit to the J&K in July 2021. Thereafter, more communications took place in which the position was reiterated and that was duly recognised by the Commission in its public hearing in Jammu on 6th April 2022.
The Kashmiri Pandit community’s activists and prominent intellectuals also took keen interest in the issue and held a number of webinars on this issue during the pandemic period in order to evolve a common strategy to follow the case. We also undertook a successful campaign to get support of the exiled community in this context and consequently a joint letter signed by more than 1,000 prominent members of the Kashmiri Pandit community on the subject was prepared. This letter was submitted to the Prime Minister through the Minister of State in the PMO, Dr. Jitendra Singh at his official residence by a delegation in October 2021. The file was duly forwarded to the Ministry of Home Affairs by the Minister for further necessary action.
When the Delimitation Commission is expected to forward its final report to the government in a couple of days, it would be appropriate here to place once the text of the joint letter to the Prime Minister, once again, for the information of the public. The joint letter to the PM follows:
“The Kashmiri Pandit (KP) community like those who live in the mainland are fortunate to have a Government, in Delhi, led by your good self which apart from being conscious of the nationalistic imperatives, is alive to the aspirations and sensitivities of 1.3 billion Bharatiya, without any distinction of caste, creed or colour. Under the guiding principle of “Sab ka Sath, sab ka Vikas, Sab ka Vishwas”, your Government is striving hard to better the lot of every Bharatiya.
With your firm belief in carrying all sections together, on the road for nation’s development, we the members of Kashmiri Pandit Community, who are the indigenous people of Kashmir, crave for your indulgence for the following submissions, and are sanguine that our Prime Minister will be kind enough to give considerate attention to these important long pending issues with the purpose of ensuring their timely and justifiable redressal.
More than 30 winters of Kashmir have now passed along with an equal number of very long mainland summers since the entire population of around 7 lakhs of highly literate and peace loving nationalist Kashmiri Pandits (KPs) were made to leave their ancestral homeland and subsequently forced to live in exile as refugees in their own country. For all these years now, this once flourishing community has been living in a state of limbo with scant attention paid to their plight, even after they lost almost everything in the orgy of violence and persecution unleashed upon them by the Islamic terrorists and secessionists.
The National Human Rights Commission (NHRC) in its pivotal decision in June 1999 said that ‘acts akin to genocide’ were committed against the Kashmiri Pandits in Kashmir and a ‘genocide type design’ may exist against them in the minds and utterances of terrorists and militants.
Now 30 years and more into their dislocation, the advent of Spring in the lives of hapless KPs continues to be a distant dream. Scattered as they are presently, across the length and breadth of the country and globe, they find themselves bereft of their sense of belonging and the well known identity. They are forgotten and relegated to the footnotes of history, with acute socio-political exclusion and marginalisation.
Manniya Pradhan Mantri Ji, Under your dynamic and above board leadership, the depressed and forsaken KP Community entertained hope and perceived a ray of light at the end of dark tunnel wherein they have been living ever since their mass exodus from the Valley. The present Government’s 2014 and 2019 Election-Manifestos had advocated return of KPs to the land of their ancestors with full dignity –politically, economically and psychologically empowered.
We trust that your good self shall redeem the promise extended to the KP community. Alongside, arrangements have to be made for a genuine political, economic and psychological empowerment of the community by reserving proportionate number of seats in the new legislative body that will come up on the completion of ongoing delimitation process.
Reservation of seats in the legislature for the minorities of Kashmir (including KPs, Kashmiri Sikhs & non-Kashmiri speaking Hindus of Kashmir) is a national imperative because they are so miniscule a minority as to make it impossible for them to reach the principal law-making body just on their own, mainly because (despite their numbers) they are scattered all over after forcible exodus from the valley engineered by enemy agents and terrorists.
KPs have been and will continue to be torch bearers of Bharat’s nationalism in hostile terrain of Kashmir valley. Pradhan Mantri Ji, it is the national duty of everyone to see their dignified return to and retention in the Valley, with assured political, social and economic rights flowing to them, uninterrupted and creation of conditions in valley to ensure that at any time in future, the community does not face another exodus and is able to live peacefully in valley along with other sections of society with dignity.
Legal and factual position
The delimitation process of Assembly Constituencies, as envisaged by The J&K Reorganization Act, 2019 (Act) is underway. Delimitation Commission constituted under Section 3 of the Delimitation Act, 2002 is on the job. Need for delimitation of the constituencies arose because the number of seats in J & K legislative Assembly has been increased to 114.
The Delimitation process has generated hope among the displaced KPs that a way will be found to ensure their political representation & empowerment. Accordingly, they approached the Commission with their well presented case for having a statuary share carved out for them in the upcoming State Assembly.
Among the myriad ethno, cultural religious and other groups that exist in the melting pot called Bharat, the place of numerically small but significant Kashmiri Pandit community has always stood out. The community which down the ages has made immense contribution to overall social, political and religious life of our nation is facing existential threat today. Away from home, they are fast losing their identity and as a distinct race, is on the verge of extinction.
How can KP identity survive as a distinctive and distinguished culture group is the moot point. Primarily, for this reason, it should come within the ambit of the United Nations Declaration on Rights of Minorities, which General Assembly adopted recalling Resolutions 46/115 of 17.07.1991, 1992/16 of 21 Feb 1992 and 1992/4 of 20.07.1992 of Commission on Human Rights:
Art 1.1 casts a duty on the State to protect the existence and the ethnic, cultural, religious, linguistic identity of minorities within their respective territories; and shall encourage conditions for promotion of that identity;
Art 1.2 calls upon the State to adopt appropriate legislative and other measures to achieve those ends;
Art 1.3 reserves a right for the person belonging to the minorities to participate in the decision making process at national and appropriate regional levels, wherein they live.
It may be pertinent to recall that the National Commission for Minorities expressed concern on the dwindling number of KPs. Former Chairperson of National Commission for Minorities, Tahir Mehmood, wrote to the then CM J&K, Dr. Farooq Abdullah, in 1999, inviting his attention to the miserable plight of the minorities in J&K state. He wrote, “Our Hindu brethren are in minority in J&K. We owe them the sacred responsibility of all that is necessary to protect their lives, properties, human rights and civil liberties” (No. CH/4/88 NCM dt 21.01.1999).
Another Chairman NCM, Gayural Hassan Rizvi told media on 13th June, 2017 “If the definition of minorities has to be revisited, it is my opinion that Kashmiri Pandits should be first people to be accorded minority status. When minorities in the entire country have that status, privileges and opportunities, why should Kashmiri Pandits, who are a minority in the state, be left out? It is something the Parliament has to decide but I will definitely raise the matter in the appropriate forum”.
These references are made to assert right of the KPs to have a say in the decision making process of the state which, keeping their small number in view, may be possible only by initiating an affirmative action in their favour, by reservation of seats in the Assembly and Bharatiya Parliament. Following should be a guide in the matter :
The Sikkim Legislative Assembly has one seat reserved for Buddhist Monks who live in Monasteries across Sikkim. This constituency is not bound by geographical boundaries but spreads across whole state like a floating constituency. The Supreme Court has in RC Poudial and another versus UOI & others (1994 SCC Sup 1 324) upheld its constitutionality on the argument that though these Monasteries no doubt are religious in nature yet they form a separate section of society.
The Court appreciated Sikkim’s Sangha Assembly seat and characterized it as a perfect example of state’s unique political process to protect minority rights.
Puducherry Assembly has 30 elected members and in addition the Government of Bharat is empowered to nominate 3 members (with voting powers ) to the Assembly from among the sections of society who don’t have chances to reach thereto by way of election. This model could be replicated in case of J&K UT also, to facilitate the KP representation.
Nomination for women in the erstwhile J&K Assembly
In the erstwhile J&K Assembly there was provision for nomination of two women members to the House, in order to correct the gender balance. On a similar principle, in the upcoming Assembly, has to be maintained by ensuring representation of all sections –particularly the Ethnic minority of Kashmir viz. Kashmiri Pandits.
Art 331 of the Constitution of India, reserved seats in the Lok Sabha and made provision for State Assemblies to reserve seats for the Anglo-India Community. Rationale behind the reservation was that Anglo Indian community constituted a religious, social as well as a linguistic minority, and being numerically small community interspersed all over Bharat, it wasn’t possible for them to get represented in a general election. KPs are similarly situated, so the logic behind Anglo Indian reservation fully applies to their case.
True, this reservation lapsed in 2020 but the logic behind it remains intact. It got lapsed because only 296 Anglo-Indians remained in the country.
Basic feature of the Constitution
In Indira Gandhi versus Raj Narrain (AIR 1975 SC 2299), the Supreme Court added following to the list of Basic Features law laid down in Keshvananda Bharti’s case (AIR 1973 SC 1461) “Democracy which means free and fair election”. In UOI V/S Association of Democratic Reforms (2002) (SCC 294) Apex Court held “Democratic Republic is a part of the basic structure of the constitution. For this, free and fair periodical elections based on adult franchise are must”.
In People’s Union for Civil liberties case (2013 (6) Supreme 673) Supreme Court observed that the decision taken by a voter either to vote or not is his right of expression under Art 19(1)a of the Constitution. It said, “the voters participation in the election is indeed the participation in democracy itself. Non-participation causes frustration and disinterest, which is not a healthy sign of a growing democracy”.
KPs right to vote is adversely affected for not having a proper vehicle of representation in the Assembly. The candidate who stands up in the constituency, where the exiled Pandits once lived, is not known to them nor does the candidate ever bother to make himself known to the displaced voters, leave alone enquiring about his problems and concerns which the displaced Pandits would want the candidate to raise in the Assembly.
In this situation, where there is none to represent him, the exile’s right to vote gets effectively scuttled. Once a bulk of voters is excluded from participating in the voting process, it no longer remains a participatory democracy.
Article 2.3 of the UN Declaration on Rights of Minorities reserves a right for minorities to participate in decision-making process at national and regional levels, were they live. The right can only be exercised if there is a proper forum available to them. For the KPs, Legislative Assembly could be the forum to feel politically empowered, besides the two houses of Parliament.
Respected Sir, The Delimitation Commission is hemmed in by the constraints of law. It may not be able to address this demand of the KPs in the desired manner. It requires amendments to the Constitution and any other relevant law. If clause A could be added to Section 36 of now repealed JK Representation of Peoples Act to have polling booths away from the jurisdiction of an Assembly Constituency to facilitate a displaced person to cast vote, similarly constituencies could be carved out for them to ensure their representation in the Assembly.
The head count of people and geography are inalienably integral to the whole electoral regime of which the Delimitation of Assembly constituencies is an important component. Precisely, to mark the point, the Delimitation Act 2002 lays emphasis on Census (Section 8) and compactness of Geography (Section 9) for delineation of Assembly or Parliamentary Constituencies.
For the reasons mentioned, herein, above both Census and the Geography elude them. There has been no head count of them, nor do they have the Geographic compactness to live in present, with the result KPs stand thrown out of the electoral regime. This amounts to their disenfranchisement and denial of citizenry rights which are available to their compatriots in the country.
In addition, this constitutes a grave violation of Human Rights. There can be no worse example of a whole ethnic community being for all practical purposes excluded from the electoral process. The situation goes against the letter and spirit of the Delimitation process.
Hon’ble Sir, the displaced KPs and other minorities of Kashmir look up to you as a Messiah who would deliver them their due and ensure that the due rights -socio-political and economic– as envisaged by the Constitution of India, flow to them, smoothly”.
The signatories to the joint letter, besides others, also include the following: Ashwani Kumar Chrungoo, Senior BJP & KP leader, Utpal Kaul, Senior KP leader, Vijay Bakaya, former MLC and Chief Secretary, J&K, Ajey Bharti (G.L.Raina) former MLC, Kuldeep Khuda, former DGP J&K, B.L.Saraf, former District & Sessions Judge, Virender Raina, senior KP leader, Sanjay Ganjoo, Senior KP leader, Ashok Bhan, Senior Advocate, Supreme Court of India, Prof. A.N.Sadhu, Eminent Economist, Yoginder Kaul, former IGP, Sanjay Raina, Advocate J&K Ladakh High Court, Dr. Surinder Kaul, Romesh Raina, Rakesh Kaul, Sardar KCS Mehta, R.K.Mattoo, Sardar Prem Singh Raina, Arvind Shah, Sardar Harbans Singh, Dr. Nidhi Tickoo Mitra, Prof. Ritu Bakshi, Vimla Chrungoo, Dr. Rajat Mitra, Sardar Bhupinder Singh Raina, Ashok Braroo, Pintoo Ji Pandit, Upender Sarup, Santosh Langer Sher and Ramanpreet Kaur.