The story so far: Amid uncertainty over a long-pending Assembly election in Jammu and Kashmir and while the Supreme Court examines the abrogation of Article 370, the Centre has tabled a Bill to reserve three seats in the Legislative Assembly for Kashmiri migrants and representatives of people displaced from Pakistan-occupied Jammu and Kashmir (PoJK).
The Jammu and Kashmir Reorganisation (Amendment) Bill, 2023, introduced in the Lok Sabha on July 26, seeks to amend the 2019 Act, which reorganised the erstwhile State to bifurcate it into the Union Territories of Jammu and Kashmir and Ladakh. While Union Minister of State for Home Nityanand Rai has claimed that the government’s intention behind the Bill is to “preserve political rights” and “overall social and economic development” of the communities, regional voices have expressed concerns over the nomination process. Some have also objected to the language of the Bill which has referred to the exodus of Kashmiri Hindus from the Valley during militancy in 1989-90 as “migration.”
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Who are Kashmiri ‘migrants’?
Thousands of Kashmiri Hindus living in the Valley were forced to flee from the Valley during the onset of militancy in the region in 1989-90. The Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, recognises them as “migrants”.
The Act defines a migrant as any person who has migrated from the Kashmir Valley or the erstwhile State after November 1, 1989, and is registered as such with the Relief Commissioner. This includes people who have not been thus registered since they are in service of the government in a moving office, or those who left to pursue an occupation or vocation, who possess immovable property at the place from which they have migrated but cannot reside there “due to the disturbed conditions.”
Around 60,000 families migrated from the Valley during this period. The majority settled in Jammu and adjoining areas, while around 23,000 families settled outside J&K, as per the Relief Organisation. Besides Pandits, these included Kashmir-based Sikhs and a few Muslim families who had to leave the Valley. A total of 44,089 families comprising 1.5 lakh individuals are registered with the government as ‘Kashmiri migrants’ in Jammu, as of March 2022. Of these, 1.3 lakh are Kashmiri Pandits, who are part of an estimated 28.4% Hindu population of a total of 1.25 crore. Muslims, meanwhile, constitute 68.31%, according to the 2011 census.
What about ‘displaced persons’ from PoJK?
Soon after the Partition, Pakistan launched ‘Operation Gulmarg’ and mobilised tribals from the North-West Frontier Province (NWFP) who raided the princely State of J&K. The violence that followed left thousands dead and forced more than 47,000 people from Pakistani towns near J&K and those living in what is now known as Pakistan-occupied Kashmir to flee. Those who fled to J&K from PoK came to be known as the “displaced persons from Pakistan-occupied Kashmir.” It was in 2016 that the NDA government substituted the term with ‘Pakistan-occupied Jammu and Kashmir’ in official documents, in line with the BJP’s narrative on unified Kashmir.
As per official data, 31,779 such families migrated from Pakistan-occupied areas of J&K in 1947. While 26,319 families settled in J&K, over 5,400 families moved to other parts of India. Many were similarly displaced during the Indo-Pak wars of 1965 and 1971, taking the total to over 40,000.
“… during the Indo-Pak wars of 1965 and 1971, 10,065 more families were displaced from the Chhamb Niabat area. Of these, 3,500 families were displaced during the 1965 war and 6,565 families were displaced during the 1971 war. As such, a total of 41,844 families were displaced during 1947-48, 1965 and 1971 Indo-Pak wars,” reads the text of the Bill.
To summarise, “the term ‘displaced person’ means any person, who, on account of the setting up of the dominions of India and Pakistan, or account of civil disturbances or fear of such disturbances in any area of the then State of J&K presently under occupation of Pakistan, during the years 1947-48, 1965 and 1971, had left or had been displaced due to such disturbances from his place of residence in such area and who has been subsequently residing outside such area and also includes successors-in-interest of any such person,” the Bill adds.
Before the Centre decided to revoke the special status of J&K, these refugees were not allowed to vote in elections or buy property in J&K. In 2019, they were granted -citizenship and equal voting rights— long-pending demands of the community.
What is the composition of Jammu-Kashmir Assembly?
Before the State of J&K was bifurcated, the Assembly had a total of 111 seats — 46 in the Kashmir division, 37 in the Jammu division, four in Ladakh and the remaining 24 seats reserved for Pakistan-occupied Kashmir. The abrogation of Article 370 on August 4, 2019, ended the special status of the erstwhile State, and J&K was left with 107 seats.
The Delimitation Commission set up by the Union government in 2020 to redraw the Assembly map recommended six additional seats for the Jammu region (revised to 43) and one for the Kashmir Valley (revised to 47), taking the total number of Assembly seats in the UT to 90. This excludes the 24 seats reserved for those residing in the area of the Union Territory under the illegal occupation of Pakistan. These seats will remain vacant until this area ceases to be occupied by Pakistan and the people residing there elect their representatives — a provision of the J&K Constitution retained in the 2019 Act.
Besides reserving nine seats for Scheduled Tribes and seven for Scheduled Castes, the Commission suggested reservation for at least two members from the “Kashmiri migrants” community, including a woman, with powers similar to nominated members of the Puducherry assembly, and sought representation of displaced persons from PoJK through nomination.
As ordered by the Delimitation Commission, the newly redrawn boundaries came into effect on May 20, 2022.
What does the Bill propose?
Aligning with the commission’s suggestions, the Bill proposes amendments to the Jammu and Kashmir Reorganisation Act, 2019, to insert new sections 15A and 15B. The two sections provide for the nomination of up to two members from the “Kashmiri migrants” community, one of them a woman, and another from among the “Displaced Persons from PoJK,” to the Legislative Assembly. The Bill grants powers to the Lieutenant-Governor to nominate the three MLAs to the Assembly.
The Statement of Objects and Reasons notes that the Delimitation Commission had received many representations from these two communities regarding reservation of seats in the J&K Assembly “to preserve their political rights and identity.”
Representation will be provided in line with Section 15 of the Act, which reads, “Notwithstanding anything in sub-section (3) of section 14, the Lieutenant Governor of the successor Union territory of Jammu and Kashmir may nominate two members to the Legislative Assembly to give representation to women if, in his opinion, women are not adequately represented in the Legislative Assembly.”
Prior to 2019, Jammu and Kashmir had similar provisions for the nomination of women to the Assembly in case of inadequate representation— Part VI of the Constitution, which dealt with the State Legislature, provided that up to two women could be nominated by the Governor. The Governor, however, was required by law to seek the advice of the elected government.
What are the legal provisions for nomination to the Legislative Assembly?
Section 3(3) of the Union Territories Act, 1963 states that the Central government “may nominate not more than three persons not being persons in the service of government,” to the Legislative Assembly. The Act, however, doesn’t state if the nominated persons have the right to vote in the Assembly.
Besides J&K, the other Union Territory with a provision for nomination of MLAs is Puducherry— the Centre may nominate up to a three members to the Puducherry Legislative Assembly. In 2018, the Centre’s decision to nominate three BJP MLAs to the Assembly was challenged before the Madras High Court on the grounds that the elected Congress government was not consulted.
The matter moved to the Supreme Court. Upholding the nominations, the top Court said that as a “property” of the Union government, the Centre was not required to consult the local government for nominations. The SC held that there was no distinction between nominated and elected MLAs, even as far as voting rights for Budget and no-confidence motions were concerned.
This issue was in the limelight again in 2021 when the V. Narayanasamy-led Congress-DMK Puducherry government had to undergo a floor test. Though the then CM claimed that nominated MLAs couldn’t vote during the trust vote, the Speaker denied his request. The Congress-DMK government collapsed, and Mr. Narayanasamy alleged that the Opposition and Centre had used the three nominated legislators to destabilise the government.
‘Subverting the mandate’: what are the concerns?
Political parties based in Kashmir have objected to the provisions of the Bill, terming the legislation an attempt of the Centre to subvert the democratic will of the people, since the L-G, who is to nominate the 3 members, is appointed by the Centre.
Highlighting that Jammu and Kashmir has a history of electing Kashmiri Pandits to the Assembly, Peoples Democratic Party (PDP) leader Naeem Akhtar argued that the Centre’s move indicated a “brazen bid by New Delhi to have veto powers in an elected Assembly” to “unfairly add up their numbers” in the UT.
National Conference (NC) chief spokesperson Tanvir Sadiq told The Hindu, “We have no problem with representation to underrepresented communities. That was also the logic behind having an Upper House, which was scrapped under this very J&K Reorganisation Act. Our opposition is to the proposal of the L-G nominating people. This should be the prerogative of the elected government and not an unelected representative of Delhi,” Mr. Sadiq said.
He claimed that the provision was an admission that the BJP is convinced of an electoral defeat in J&K. “The entire process is currently under challenge in the court. It raises concerns about how the government can proceed with a decision in such haste while it is still being debated before the Supreme Court,” the NC leader said.
J&K Peoples Conference (JKPC) stressed that the nomination process should be carried out on the advice of the Council of Ministers to ensure fair representation and uphold democratic values. Party spokesperson Adnan Mir feared that selective nominations to the Assembly could alter the majority in the Legislature into a minority. “This undemocratic tactic not only undermines the essence of our democratic structure but also poses a severe threat to the basic tenets of our Constitution,” Mr. Mir said in a statement.
