Khushi Bajpai
Published on: October 4, 2022 at 23:35 IST
The Supreme Court has received a response from the Ministry of Home Affairs and the Election Commission of India disputing the arguments made against the creation of the Delimitation Commission on behalf of the Union of India and the Union Territory of Jammu and Kashmir.
Haji Abdul Gani Khan and Dr. Mohammad Ayub Mattoo, two J&K citizens, have filed responses in 2022 contesting the delimitation procedure.
The petitioners contend that the impugned Delimitation announcement, which required the UT of J&K to conduct its delimitation procedure in accordance with the 2011 population census, is unlawful because the UT of J&K did not conduct a population census operation in 2011.
Additionally, the argument asserts that the increase in seats in the UT of Jammu and Kashmir from 107 to 114 violates Articles 81, 82, 170, 330, and 332 of the Constitution as well as Section 63 of the 2019 Jammu and Kashmir Reorganization Act.
It is emphasized that Section 39 of the UT Act is also broken because the change is not proportionate to the relevant population.
Joint Reply of Union of India and UT of Jammu and Kashmir
According to the Ministry’s answer, the Delimitation Commission was established two years before the Writ Petition was instituted, has since finished its work, and its decisions have been published in the Indian Gazette.
The Petitioners have failed to provide an explanation for the delay.
Delimitation Orders Once Gazetted Cannot Be Changed
The Delimitation Act, 2002’s Section 10(2) prohibits challenging the Delimitation Commission’s rulings after they have been published in the Indian Gazette, according to the Union.
According to the counter-affidavit, the principle was also affirmed in the case of Meghraj Kothari vs. Delimitation Commission, which had become infructuous because the documents had been final when they were published in the Indian Gazette.
It would be a violation of Article 329 of the Constitution, the Union countered.
No Contradictions in the Provision of J&K Re-Organisation Act, 2019
The Election Commission had asserted, according to the Union’s counter-filing, that the petitioners’ arguments were entirely incorrect and had been reached without a clear and thorough comprehension of the 2019 Jammu and Kashmir Reorganization Act.
It was also brought out that the Election Commission had said that since the Delimitation Commission was being established in accordance with Section 62 of the 2019 Act, it didn’t seem essential for the Election Commission to take any further action.
In addition, the Union responded that Sections 60, 61, and 62 of the 2019 Act do not conflict with one another.
“The 2019 Act, it is said, includes two more methods for delineating the Union Territory of Jammu and Kashmir. By virtue of Sections 60–61, the Election Commission is given the authority to determine delimitation, while Sections 62(2) and 62(3) provide the Delimitation Commission established pursuant to Section 3 of the Delimitation Act the authority to carry out delimitation.”
The 2019 Act’s Sections 60, 61, 62, and 63 work together harmoniously and without conflict, and it offers two more methods for conducting the delimitation of the Union Territory of Jammu and Kashmir.
Not Violative of Article 170 of the Constitution
According to the Ministry of Home Affairs’ response, the petitioners have neglected to recognize and respect Article 4 of the Constitution, which gives authority to enact supplemental provisions and amendments, including the delimitation, that do not constitute constitutional amendments.
The Punjab Reorganization Act was challenged as being unconstitutional, in violation of Article 170 of the Constitution, according to the Constitution Bench’s ruling in Mangal Singh vs. Union of India, which was cited by the Union.
The Union said that the five-judge panel had made it plain that any statute that adds supplemental or consequential provisions, alters the First and Fourth Schedules, or both should not be regarded as a constitutional amendment under the terms of Article 368.
The Union argued that because “the instant petitioners have also made identical grounds with respect to the denial of equality as a result of the delimitation, the same should stand dismissed in view of the aforementioned judgment,” the case should be dismissed.
Reply of the Election Commission of India
The Election Commission of India asserted right away that the petitioner’s complaint related to the Delimitation Commission’s creation, and that the Central Government had exercised its authority under Section 3 of the Delimitation Act, 2002 to enact the order creating the Delimitation Commission, its purview, and its term, and that the Election Commission “has no jurisdiction to comment on the vires of the same.”
Delimitation Orders Once Gazetted Have Acquired the Force of Law
According to Section 10(2) of the Delimitation Act, the Delimitation Act, and the Delimitation Orders that have been published via Gazette Notifications and have gone into effect have gained legal authority.
This was also stated in the response submitted through the Secretary of the Election Commission of India.
The Election Commission further noted that prior to the publication of the final order, a number of public meetings were organized to give the general public enough chance to submit oral and written comments to the Delimitation Commission.
Bar on Judicial Interference
The Election Commission of India further argued that under Article 329(a) of the Indian Constitution, judicial intervention regarding the legality of any law pertaining to the delineation of constituencies is prohibited.
In response, it was noted that the Supreme Court had ruled in Meghraj Kothari vs. Delimitation Commission, that an order that has been published in the Indian Gazette cannot be reagitated before a court of law.
The Commission also noted that the Supreme Court had made such remarks in the cases of J&K National Panthers Party vs. Union of India and Assn. of Residents of Mhow (ROM) vs. Delimitation Commission of India.