As it published the new electoral map of Jammu and Kashmir on May 5, the delimitation commission had a recommendation for the government – reserve at least two seats for Kashmiri migrants.

Members to these seats would be nominated by the government, the commission suggested, and one of the two nominees would be a woman. Both these seats would be in the Kashmir Valley.

Kashmiri migrants are those who left the Valley during the militancy in the 1990s. Most were Kashmiri Pandits who fled as the community was targeted by militant groups.

The commission also suggested nominating “displaced persons from Pakistan Occupied Jammu and Kashmir” to the legislative assembly. It was silent on the number of nominated seats to be reserved for them.

While these recommendations appeared in the press release issued by the commission, they did not feature in the official gazette notifying the new electoral map – which means they are not binding on the government.

Many in the Valley, including former Jammu and Kashmir Finance Minister Haseeb A Drabu, were sceptical, calling them mere “optics”. “What prevented them from making a recommendation in the gazette notification?” he demanded.

If the recommendations were meant to find favour with migrant communities from Kashmir, they may have missed their mark. Satish Mahaldar, chairman of the Reconciliation, Return and Rehabilitation of Migrants, a group working for the rehabilitation of Kashmiri migrants in Jammu and Kashmir, also called them “optics”.

“The recommendations mean that a Kashmiri migrant settled in Delhi, America or Bangalore will become a member of the Jammu and Kashmir legislative assembly,” he said. “That doesn’t make any sense because the first priority should be that a migrant is at home. Until the people are rehabilitated back to the valley, this recommendation amounts to nothing.”

Those displaced from Pakistan-occupied-Jammu and Kashmir are not pleased with the proposal, either. They had wanted elected, rather than nominated, representatives in the assembly.

A new political map

In the Kashmir Valley, the recommendation to have nominated candidates has added fuel to the accusation that the delimitation exercise was driven by one goal – to reduce the share of Kashmiri Muslims in the legislative assembly.

Traditionally, the chief minister of Jammu and Kashmir has been from the Muslim-majority Kashmir Valley. The government has usually been led by Kashmir-based parties.

But Jammu and Kashmir has not had an elected government since 2018, when the Bharatiya Janata Party walked out of the coalition government led by the People’s Democratic Party and governor’s rule was imposed in the state. A year later, on August 5, 2019, Jammu and Kashmir was split into two Union Territories and stripped of autonomy under Article 370.

The legislative assembly was dissolved. The Centre promised it would be reconstituted after the delimitation exercise, after which assembly elections could take place and statehood restored.

Mainstream political parties in Kashmir have been critical of the exercise, calling it unconstitutional and accusing the commission of acting in the interests of the ruling Bharatiya Janata Party. The commission was accused of ignoring the legitimate criteria for drawing constituencies: the population of an area and its geographical inaccessibility.

As the new electoral map of Jammu and Kashmir was finalised on May 5, they called it an exercise to “disempower” the people of the Muslim-majority Kashmir Valley.

“It will be for the first time in the electoral history of the country that elections are being rigged long even before the first vote is cast,” said the People’s Democratic Party in a statement after the commission published its final report.

Before delimitation, Kashmir had 46 seats and Jammu 37. Now, the delimitation commission has narrowed the gap – Jammu has been awarded six more seats, bringing its tally up to 43, and Kashmir just one more, giving it 47 seats.

The commission proposes to reserve another two seats in the Valley for Kashmiri migrants. It has already reserved nine seats for Scheduled Castes, six in Jammu and three in Kashmir.

Apart from the elected seats, the Jammu and Kashmir assembly has traditionally had 24 vacant seats, meant to represent the areas of Pakistan-occupied-Jammu and Kashmir where elections could not be held. The commission now proposes to nominate members to some of these vacant seats.

Taken together, these moves are predicted to bring down the number of Kashmiri Muslims in the legislative assembly.

The Puducherry model

According to official figures, around 60,000 families migrated from Kashmir during the peak years of militancy. While most were Kashmiri Hindus, Muslims and Sikhs also fled the Valley. While about 23,000 families settled in Jammu, the rest settled in other states or became part of the Kashmiri diaspora in other countries.

In theory, any such migrant may be nominated to the assembly provided they are not a government employee.

Under Section 3 (3) of the Union Territories Act, 1963: “The Central government may nominate not more than three persons not being persons in the service of government, to the Legislative Assembly of the UT.”

According to the delimitation commission’s press statement, nominated members “may be given power at par with the power of nominated members of the Legislative Assembly of Union Territory of Puducherry.”

In the 33-member-strong legislative assembly of Puducherry, three are nominated. The Union Territories Act is silent on the voting rights of such members. But a Supreme Court ruling in 2018 said they had voting rights on par with elected members, including on trust votes, confidence motions and the budget. Nominees to the assembly, appointed by the Centre, had usually been seen as allies of the ruling party in Delhi.

According to Mahaldar, the proposal to have nominated migrant candidates was a means to bypass the hard work of actually ensuring migrants return to the Kashmir Valley. “It’s in contradiction to the redevelopment and rehabilitation of migrants,” he said.

Elected, not nominated

Those displaced from Pakistan-occupied-Jammu and Kashmir are mostly Sikh and Hindu. They had migrated after the border war of 1947, which partitioned Jammu and Kashmir between India and Pakistan. According to estimates by a community leader, there are around 11 lakh displaced persons from Pakistan-occupied-Jammu and Kashmir living this side of the border.

For years, representatives of the community had wanted some of the 24 seats that have been left empty to be opened up for elections. “We are not living in the areas that we belong to because they are under the illegal control of Pakistan,” said Rajiv Chuni, chairman of SOS International, an organisation working for the welfare of the community. “Therefore, we had sought the de-freezing of at least eight out of 24 seats kept for the areas under the control of Pakistan and have them reserved for us so that we can elect representatives from our own community while living here.”

Besides, Chuni said, the commission had overstepped its remit in making proposals for the 24 frozen seats. The delimitation exercise was mandated by the Jammu and Kashmir Reorganisation Act of 2019, which split the former state into two Union Territories.

“I personally met the chairperson of the delimitation commission, who clearly said that her mandate is limited [by] the Jammu and Kashmir Reorganisation Act, 2019,” he claimed. “Since the act clearly said that the 24 seats will continue to be left untouched for the areas under the control of Pakistan, we knew our demand [to unfreeze eight seats] wouldn’t be fulfilled.”

Given the limitations, the commission had no real say over the 24 seats. “The delimitation commission has done its work,” he said. “Now, the ball is in the government’s court. They will decide how many members will be nominated. At the same time, we don’t know how serious the government is about these recommendations.”

There are other legal tangles involved. As residents of Jammu and Kashmir, this displaced community already has voting rights in the constituencies where they live, both for assembly and for Lok Sabha elections.

A retired bureaucrat in Kashmir, who did not wish to be identified, said having nominated representatives from the same community gave them dual weightage.

“These people are already part of Jammu’s population and they figure in the Census, too,” he said. “Therefore, when the delimitation for seats in Jammu was done, their number was also taken into consideration. Now, the commission is recommending another representation for them. That’s in contradiction with the principle of one person, one vote.”

He felt it was for political parties to ensure that the displaced communiy was represented in the assembly. “What’s stopping the BJP or any other political party from fielding candidates from the community in the main Jammu assembly segments?” he asked.