While Upholding J&K Delimitation, Supreme Court Rejects Comparisons With Telangana/AP & North Eastern States

While upholding the delimitation exercise carried out in the Union Territory of Jammu and Kashmir, the Supreme Court has rejected the arguments raised by the petitioners on the basis of comparisons with the Telangana-Andhra Pradesh and North Eastern states.The petitioners' case was mainly based on Article 170 (3) of the Constitution of India that freezes delimitation exercise till the first census after 2026. In this regard, they referred to the situation after the bifurcation of the State of Andhra Pradesh in 2014. They referred to an answer given by Ministry of Home Affairs in the Parliament in 2021 regarding the delimitation in the State of Telangana. The answer was that the total number of seats in the Assembly of each State will be readjusted after the first census is published after the year 2026. The petitioners also cited the opinion given by the Attorney General that Article 170 will prevail over the provision in the AP Reorganisation Act.However, the Supreme Court held that Article 170(3) is not applicable to a Union Territory, which J&K at present is. Hence, the comparison with AP-Telangana was found to be misplaced. Article 239A which deals with the creation of local legislatures and/or council of ministers for certain Union Territories is applicable for the UT of J&K. The said provision does not provide for any such freezing period."The petitioners cannot rely upon the answer given by Hon’ble Minister in the Lok Sabha as it deals with delimitation of Constituencies in Telangana in the context of Article 170. In any event, the said opinion as well as the answer given by the Hon’ble Minister have no bearing on the interpretation of the J&K Reorganisation Act"North Eastern States And The UT of J&K Are Not Similarly Situated, Hence No DiscriminationOn 06.03.2020, a Delimitation Commission was appointed by the Central Government to carry out a delimitation exercise in the Union Territory of J&K along with the State of Arunachal Pradesh, Assam, Manipur and Nagaland. Another notification was issued on 03.03.2021 to amend the first notification to the extent that it deleted the States of Arunachal Pradesh, Assam, Manipur and Nagaland from the purview of the Delimitation Commission.Responding to the petitioner’s ground of discrimination based on the withdrawal of the delimitation notification for the north-eastern States of Assam, Arunachal Pradesh, Manipur and Nagaland, the Bench noted -“...discrepancies in census figures of 2001 in relation to these States were pointed out. In fact, it is stated that a number of notices have been issued regarding the said discrepancies. Therefore, the said letter was issued with the approval of the competent authority in which it was stated that it may not be conducive to grant an extension for the process of delimitation in the four North-Eastern States.”It noted that two unequals cannot be treated equally and thus, it rejected the argument based on the violation of the Constitutional provisions including Article 14."The position and the status of the newly created Union Territory of J&K under the Constitution is completely different from the four north-eastern States. In its applicability to the Union Territory of J & K, Sections 4 and 9 of the Delimitation Act, 2002 stand amended by requiring readjustment to be carried out on the basis of the census figures of 2011. In case of the North Eastern States, there is no such amendment. Therefore, two unequal cannot be treated as equals. Hence, the argument based on the violation of Constitutional provisions including Article 14 deserves to be rejected."A Bench comprising Justice S.K. Kaul and A.S. Oka passed the order while dismissing a petition which challenged the delimitation exercise carried out for redrawing the Legislative Assembly and Lok Sabha constituencies in the Union Territory of Jammu & Kashmir.It also noted that Parliament can by enacting a law convert an existing State into one or more Union Territories. The Parliament has the power to create a body of legislature for the Union Territory of Jammu and Kashmir by way of a statute and for that purpose if some amendments are made to the Constitution by the said statute, it shall not be deemed to be an amendment under Article 368 of the Constitution of India.Factual Background On 05.08.2019, in exercise of power under Clause (1) of Article 370 of the Constitution of India, the President of India issued the Constitution (Application to Jammu and Kashmir) Order. By the said order the provisions of the Constitution was made applicable to the State of Jammu and Kashmir. On 06.08.2019, a declaration under Clause (3) of Article 30 was made by the President whereby it was declared that all the clauses of Article 370 shall cease to be operative. On 31.10.2019, the Jammu and Kashmir Reorganisation Act, 2019, which provided for reorganisation of the State of Jammu and Kashmir by dividing it into two Union Territories came into force. A new Union Territory of Ladakh was...

While Upholding J&K Delimitation, Supreme Court Rejects Comparisons With Telangana/AP & North Eastern States

Sohini Chowdhury

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