**Anshul Dalmia & Tanmay Durani
Introduction
The recently concluded elections to the Legislative Assembly of the Union Territory of Jammu & Kashmir marked two significant developments. First, the National Conference-Congress alliance secured a surprising victory, winning 49 of the 90 newly constituted Assembly seats. Second, the elections took place after a comprehensive delimitation exercise – J&K’s first in 27 years.
A three-member Delimitation Commission carried out the redrawing of Assembly constituencies based on the 2011 Census, in accordance with the the Jammu & Kashmir Reorganization Act 2019. For the first time, the final delimitation order also introduced reservations for Scheduled Castes and Scheduled Tribes. On paper, these measures reflect a positive step toward electoral inclusion and representational equity. However, serious concerns remain regarding both the design and implementation of the exercise – concerns that raise a few foundational constitutional questions.
This piece critiques the J&K delimitation process across three core dimensions. First, it examines the outdated and exclusionary framework governing caste-based reservations. Second, it interrogates the Supreme Court’s doctrinally thin endorsement of the exercise. Finally, it assesses the Commission’s failure to adequately account for J&K’s complex topography and administrative viability. Taken together, these shortcomings reveal the process as a cautionary exemplar of how delimitation ought not to be undertaken.
Outdated Definitions and Narrow Eligibility: A Flawed Reservation Framework
The 2019 Jammu & Kashmir Reorganisation Act extends to the Union Territory the applicability of the Constitution (Jammu and Kashmir) Scheduled Castes Order, 1956 and the Scheduled Tribes Order, 1989. These orders have remained largely unchanged for decades and do not reflect the current social and economic conditions of the communities they list. Furthermore, in line with long-standing constitutional practice, Scheduled Caste [SC] reservations remain restricted to persons professing Hindu, Sikh, or Buddhist faiths, thereby excluding similarly disadvantaged individuals from other religious communities, including Muslims. While this limitation stems from the Presidential SC Orders under Article 341, it has drawn criticism [here and here] for failing to account for the broader, religion-neutral understanding of social disadvantage.
Critics [here and here] argue that such exclusions violate Articles 14 and 15 of the Constitution by introducing religion-based discrimination into the protective regime for historically oppressed groups. Dictum in Indra Sawhney v. Union of India and the findings of the Ranganath Misra Commission, have further highlighted that caste-based exclusion and stigma persist across religious boundaries, warranting a re-examination of the faith-based restrictions in the SC framework.
In a related context, the Supreme Court in Vikas Kishanrao Gawali v. State of Maharashtra laid down the “triple test” for reservations of seats for Other Backward Classes (OBCs) in local self-government institutions. The Court mandated a contemporaneous empirical inquiry into backwardness, quantification of the extent of reservation, and a ceiling of 50% on the total reservation. Although this test applies specifically to OBCs in local bodies under Articles 243D(6) and 243T(6), the underlying principle – that reservations must be grounded in updated, evidence-based assessments – offers a valuable normative benchmark.
The failure to subject existing SC/ST lists to similar scrutiny, or to re-evaluate representational disadvantage in light of present conditions, raises constitutional concerns for the fairness and legitimacy of future delimitation exercises.
Judicial Endorsement Without Doctrinal Scrutiny
A constitutional challenge to Section 60 – which increased the number of Assembly seats from 107 to 114 – and the overall delimitation exercise was dismissed by the Supreme Court in Haji Abdul Gani Khan v. Union of India. A two-judge bench upheld the delimitation provisions of the Reorganisation Act, holding that Article 170, which governs the composition of State Legislatures, does not apply to Union Territories.
Notably, the Court declined to entertain arguments challenging the Section 60 of the J&K Reorganisation Act, citing the absence of explicit pleadings. In doing so, it also refrained from engaging with the broader constitutional concerns around equality and representational fairness. This judicial restraint effectively foreclosed the development of a more principled jurisprudence on reservations and delimitation in constitutionally exceptional contexts such as Union Territories undergoing federal restructuring.
Topographical Misalignment and Administrative Oversights
The Final Order of the Commission purported to consider geographical features, means of communication, public convenience, and contiguity of areas while delimiting electoral constituencies. The Commission not only categorised the districts into broad geographical categories but also carved out an additional constituency to balance the representation for geographical areas having inadequate communication. Yet its decisions in key districts illustrate a disconnect between principle and practice.
For instance, the Pir Panjal mountain range now bisects the Anantnag parliamentary constituency, placing the Rajouri and Poonch districts on the opposite side of the range. In between lies the Shopian district which has been made a part of the Srinagar seat. The road between Shopian and Poonch remains inaccessible due to extreme winters, and even mild rainfall or inclement weather often renders it impassable. This has caused immense difficulty for political parties to efficiently campaign. It poses a higher logistical inconvenience to the people – who would now have trouble in finding their elected representatives in a constituency as divided as this.
The Commission’s final order is also silent on the question whether it consulted geographers, cartographers, or other topographical experts – a discretion it could have exercised under Section 5(5) of the Delimitation Act, 2002. Although not mandatory, such consultation would have strengthened the institutional competence of the Commission and improved the alignment between constituency boundaries and ground realities. The failure to incorporate expert inputs undermines the credibility of the process and raises concerns about its ability to safeguard the constitutional right to vote in an effective and meaningful manner.
Conclusion
The delimitation exercise in J&K has been heralded a success by many, along with the Supreme Court providing its stamp of approval on both the legislation and the process in general. However, we see that certain concerns and issues hang on the effectiveness of delimitation as swords waiting to be addressed. While these problems might seem specific to J&K, it can be extrapolated to Parliamentary and Legislative Assembly elections that will be due soon. Many States have irregular topographies along with excluded marginalised communities and thus, these concerns will persist for time to come. It is only prudent that we learn our lessons from the J&K exercise and vow to move away from these constitutional mishaps.
**Tanmay Durani is a law student at Rajiv Gandhi National University of Law.
**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.
About the Authors
Anshul Dalmia is a Research Fellow with the Charkha Team (Centre for Constitutional Law). He recently graduated in 2024 from the University of Oxford with the Bachelor of Civil Law degree as a KC Mahindra Scholar wherein he received the Oxford Law Faculty Prize for the course on 'Constitutionalism in Asia'. He has also completed his undergraduate degree (BA LLB (Hons.)) from the WB National University of Juridical Sciences in 2017 as a gold medallist (Rank 1) in the year 2022.