"Idea Is To Give Immediate Democracy To J&K" : Centre Says On Delimitation In Jammu & Kashmir; Supreme Court Reserves Judgment

The Supreme Court, on Thursday, reserved judgment in the plea, inter alia, challenging the delimitation exercise undertaken in the Union Territory of Jammu and Kashmir pursuant to the recent notifications.On Wednesday, the Bench comprising Justices Sanjay Kishan Kaul and A.S. Oka had heard the submissions of Senior Advocate, Mr. Ravi Shankar Jandhyala, representing the petitioners. His primary challenge to the impugned notifications was on the touchstone of the scheme envisaged in Article 170(3) of the Constitution of India. He argued that the said provision had frozen delimitation till the first census after 2026. However, Justice Oka had highlighted that though the Senior Counsel had orally argued that the provisions of the Jammu And Kashmir Reorganisation Act, 2019 is in the teeth of the Constitution of India, the constitutional validity of the concerned provisions of the statute has not been challenged in the petition. On Thursday, while opening his counter arguments, one of the initial submissions of the Solicitor General of India, Mr Tushar Mehta was that the constitutionality of the provisions of the Reorganisation Act have not been challenged in the present writ petition. The Solicitor General cited the Constitution Bench judgment of the Apex Court in Mangal Singh And Anr. v. Union of India to argue that on previous occasions the 'constitutionally fixed number of MLAs were reorganised in Reorganisation Acts'. He further submitted - "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."Mr. Mehta emphasised that the Parliament was aware about the two organs, the Election Commission and the Delimitation Commission, which is evident from the definition clause (Section 59) of the 2019 Reorgansiation Act. He submitted that as per the scheme of the Reorganisation 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 Solicitor General controverted the petitioner's argument that the provision of the 2019 Reorganisation Act was not consistent with each other or the constitutional framework. He submitted - "There is no dichotomy inter-se or with any constitutional provisions."Coming to the submission of the petitioner that singling out Jammu and Kashmir for the delimitation exercise, when by way of a second notification the Central Government had removed delimitation for the States of Assam, Arunachal Pradesh, Manipur and Nagaland was violative of Article 14 of the Constitution, Mr. Mehta stated that there were internal disturbances in north eastern States and thus they were omitted from the notification - "The next contention raised was why only J&K. Why have you left out north northeastern States? The answer to it is that the delimitation is made applicable to this area in 2019. How we bifurcated between J&K and North-Eastern States? There were reports of internal disturbance in the North Eastern State at that point in time. The President has the power in the Representation of People Act to make this bifurcation. The President can defer delimitation of any particular State. I don't think in case of delimitation there can be any A. 14 argument."Mr. Mehta also argued on the aspect of delay in filing the petition. "Kindly recall, in 2020 the Delimitation Commission was constituted. Thereafter, repeatedly causes of action kept on arising where objection was invited etc. But the petition was filed in 2022. Delimitation is over and it has been Gazetted as well."The Counsel for Election Commission 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. In his rejoinder, Mr. Jandhyala pointed out that when a Memeber of the Parliament had raised a question on the floor of the Lok Sabha asking when will the seats in Andhra Pradesh be increased in terms of the AP Reorganisation Act, the Union Government's response was that till 2026 it could not be altered in view of Article 170(3) of the Constitution. He also emphasised that the J&K High Court as well as the Apex Court in 2011, had upheld the freeze on delimitation in J&K till 2026. Mr. Jandhyala submitted that back then the Union Government ...

"Idea Is To Give Immediate Democracy To J&K" : Centre Says On Delimitation In Jammu & Kashmir; Supreme Court Reserves Judgment

Sohini Chowdhury

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