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Supreme Court Reserved Verdict on Matter Challenging Formation of Delimitation Commission in Jammu and Kashmir

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Aastha Thakur

Published on: 03 December 2022 at 18:16 IST

The Supreme Court after listening the both sides have reserved judgement in the plea, inter alia, challenging the delimitation exercise undertaken in the Union Territory of Jammu and Kashmir pursuant to the recent notifications.

The Bench comprising of Justices Sanjay Kishan Kaul and AS Oka were listening the plea of the petitioners. The Senior Advocate Mr. Ravi Shankar Jandhyala, was representing the petitioners.

The counsel claimed that the alleged notifications was on the touchstone of the scheme envisaged in Article 170(3) of the Constitution of India. He further argued that the notification provides immunity to delimitation till the first census after 2026.

Justice Oka pointed out as stated by the counsel the same contentions has been not raised in the petition regarding provisions of the Jammu & Kashmir Reorganisation Act, 2019.

Solicitor General of India, Mr. Tushar Mehta opposed that constitutionality of the provisions of the Reorganisation Act have been challenged in the present writ petition. Regarding the issue of delimitation, he submitted that –

“The idea was that the last delimitation had taken place in 1995. The Govt’s idea was to give immediate democracy to J&K. To wait till 2026 was legislatively found to be unwise.”

The Solicitor General mentioned that as per Section 59 of the 2019 Reorgansiation Act, the first delimitation exercise ‘shall’ be carried out by a Delimitation Commission, which is a temporary body. The rationale behind such a decision was explained as under –

“The intention is that the first delimitation is not by the Election Commission who is busy holding elections throughout the country. The first delimitation is to be done by the Delimitation Commission and then it can be done by the Election Commission. This is temporary exigencies being taken care of.

The peculiar circumstances under which entities are coming into being. Before 2019, Delimitation Act was not applicable to J&K. Re-adjustment of constituencies in the first delimitation ‘shall’ be done by the Delimitation Commission.”

The petitioner next submitted that why only Jammu and Kashmir is targeted for the delimitation exercise, when as per second notification issued by the Centre, delimitation had been removed for the States of Assam, Arunachal Pradesh, Manipur and Nagaland. It was submitted by the petitioners that it is violative of Article 14 of the Constitution.

Regarding this Mr. Mehta reasoned that there were internal disturbances in north eastern States and thus they were omitted from the notification. Under Constitution President has discretionary power to make this bifurcation, and defer delimitation of any particular State.

The counsel appearing for the Election Commission of India submitted that so far as the increase in number of seats is concerned, ample opportunity was given for raising objections, which was not utililsed and the delimitation order has now attained the force of law.

The rejoinder filed by Mr. Jandhyala pointed out that back in 2011 the J&K High Court as well as SC upheld the freeze on delimitation in J&K till 2026. The Center previously supported the decision to freeze delimitation until 2026, but now they are making contradictory statements.

The plea also challenged the increase in number of seats from 107 to 114 (including 24 seats in PoK) in the UT of Jammu and Kashmir to be ultra vires Articles 81, 82, 170, 330 and 332 of the Constitution and Section 63 of the Jammu and Kashmir Reorganisation Act, 2019. Furthermore, the increase of seat is not in proportion with respective population, violating Section 39 of the UT Act.

As per the Guidelines and Methodology for the Delimitation of Assembly and Parliamentary Constituencies issued on 2004, the total number of existing seats in the Legislative Assemblies of all States, including UT of NCR and Pondicherry was fixed based on the 1971 census which was to remain unaltered till the first census to be taken after the year 2026.

The matter of the petition, is related to the delimitation of Assembly and Parliamentary constituencies in UT of J&K and States of Assam, Arunachal Pradesh, Manipur and Nagaland. It was released after the abrogation of Article 370, by notification dated 06.03.2020.

The notification was then later on amended by releasing the impugned notification dated 03.03.2021 – Delimitation Commission was extended for another year and States of Assam, Arunachal Pradesh, Manipur and Nagaland were taken out of the purview of the said notification.

Case Title: Haji Abdul Gani Khan And Anr. v. UoI & Ors.