Supreme Court Dismisses Challenge To Delimitation In Jammu & Kashmir

A Bench comprising Justice S.K. Kaul and Justice A.S. Oka passed the order in a plea, inter alia, challenging the delimitation exercise undertaken in the Union Territory of Jammu and Kashmir pursuant to the recent notifications. Justice Oka, reading out the operative portion of the judgment, said that the judgment has clarified that the dismissal of the petition should not be construed as giving imprimatur to the decisions taken in relation to Article 370 as the said issue is pending before a Constitution Bench.  Senior Advocate, Mr. Ravi Shankar Jandhyala, representing the petitioners had contended that the delimitation exercise was in violation of the scheme of the Constitution of India, especially Article 170(3), which had frozen delimitation till the first census after 2026. He had argued that the delimitation exercise was being carried out in the teeth of constitutional and statutory provisions. He had further submitted that after the delimitation order was passed in the year 2008, no further delimitation exercise could have been undertaken. The Senior Counsel had emphasised that post 2008, all delimitation related exercise can be carried out only by the Election Commission and not a Delimitation Commission.

Justice Oka had highlighted that though the Senior Counsel for the petitioner 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. While opening his counter arguments, the Solicitor General of India, Mr Tushar Mehta also submitted at the threshold that the constitutionality of the provisions of the Reorganisation Act have not been challenged in the present writ petition.

The Solicitor General had controverted the petitioner's argument that the provision of the 2019 Reorganisation Act was not consistent with each other or the constitutional framework. It had been argued that the legislature intended the first delimitation to be undertaken by a Delimitation Commission and not the Election Commission, which is busy holding elections throughout the country. Mr. Mehta reverted to the submission of the petitioner that Jammu and Kashmir was singled out for the delimitation exercise, as is evident from the second notification whereby the Central Government had removed delimitation for the States of Assam, Arunachal Pradesh, Manipur and Nagaland. Mr. Jhandyala had argued that the same 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 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 had pointed out that when a Member 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. It had been also highlighted that, after the delimitation order of 2008, the Election Commission was entrusted with further exercises pertaining to delimitation. He had averred that the Election Commission had abdicated its duties.

The petition filed through Advocate on Record Sriram Parakeet asserted that the impugned Delimitation notification, which directed the process of delimitation to be carried out in UT of J&K to be done on the basis of the 2011 population census, is unconstitutional as no population census operation was carried out in 2011 for UT of J&K. The petition also argued that the Delimitation Commission does not have the power to carry out the exercise as under Section 9(1)(b) of the Representation of Peoples Act, 1950 and Section 11(1)(b) of the Delimitation Act 2022, the power vested on the Election Commission is to update the Delimitation order by making the necessary changes on account of subsequent events and the said power cannot change boundaries or areas or extent of any constituency by way of any notification. It argued that the Delimitation Commission cannot be established under Section 3 of the Delimitation Act 2002 as it has become inappropriate in 2007 when the Commission was wound up and after which the Delimitation of Parliamentary and Assembly Constituencies Order was issued in 2008. Since the delimitation has been completed and the Delimitation Commission has become inappropriate, the respondents are not competent to carry out the exercise now. The 29th Amendment to the Jammu and Kashmir Constitution in 2002 has frozen the delimitation process in J&K till after 2026. The petition contends that even when Article 170 of the Constitution of India indicates that next delineation exercise is to be carried out only after 2026, enforcing the delimitation process in UT of J&K is not only arbitrary but also violative of the basic structure of the Constitution. The petition also submitted that on 03.08.2021 in reply to Lok Sabha Unstarred Question No. 2468 - "The question was in respect of the provision in the AP Reorganisation Act, 2014, to increase the number of seats in the Telangana and Andhra Pradesh Assemblies", the Minister of State in the Ministry of Home Affairs said "As per Article 170(3) of the Constitution, the total number of seats in the Assembly of each State will be readjusted after the first Census is published post the year 2026 ".

The plea also challenged the increase in number of seats from 107 to 114 (including 24 seats in Pakistan Occupied Kashmir) 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. It was emphasised that the change not being proportionate with the respective population was also violative of 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.

After the abrogation of Article 370, on 06.03.2020, the Union Government, Ministry of Law and Justice in exercise of power under Section 3 of the Delimitation Act, 2002, issued a notification for delimitation of Assembly and Parliamentary constituencies in the UT of J&K and States of Assam, Arunachal Pradesh, Manipur and Nagaland. By notification dated 03.03.2021, the 2020 notification was amended - 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. On 21.02.2022, by way of another notification the term of the Delimitation Commission was further extended by 2 months, beyond 06.03.2022.

Also Read :

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

Article 170 Of Constitution Not Applicable To Legislatures Of Union Territories: Supreme Court In J&K Delimitation Case

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