The Supreme Court, on Friday, asked the Union Government, UT of Jammu and Kashmir and the Election Commission to file their response in a plea, inter alia, challenging the Delimitation exercise undertaken in the Union Territory of Jammu and Kashmir pursuant to the notifications of 2020, 2021 and 2022.
"...all respondents being represented before us in order to examine it is necessary to have the stand of the respondent filed on affidavit. The affidavits be filed within 6 weeks.
A Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh noted that the challenge in the present petition does not extend to assailing the abrogation of Articles 370 and 35A, though some allegations have been raised in the petition in this regard. According, it recorded in the order -
"On our specific query Ld. Counsel for petitioner submits that he is not assailing the abrogation of Articles 370 and 35A of Constitution of India. Thus, the allegations in that behalf are relevant and to be ignored."
The matter will be next considered on August 30.
At the outset, Senior Advocate Ravi Shankar Jandhyala, the Counsel for the petitioner, submitted that the delimitation exercise was in degradation of the scheme of the Constitution of India, especially Article 170(3) which had frozen delimitation till the first census after 2026.
"Contrary to the scheme of the Constitution expressed under Articles170(3), 55, 85, 82, 330, 332. The essence of this provision is that the delimitation is frozen till the first census after 2026. Therefore the alteration of boundaries cannot be done because of these provisions."
Justice Kaul noted, "Delimitation Commission was constituted quite some time back. You did not challenge it then."
The Counsel responded that the challenge was not to the constitution of the Commission, but the delimitation exercise being carried out in the teeth of constitutional and statutory provisions.
"I am not challenging the constitution of the commission. I am on two issues. 2002 delimitation became inappropriate in 2007. Thereafter, delimitation order was passed in 2008. Once it is inappropriate no provision can be used from therein. Only the election commission can conduct elections and in case of boundary dispute and name changes only that can be done."
Perplexed about the real challenge in the present petition, Justice Kaul enquired -
"You are challenging the commission for J&K. Are you seeking to challenge the constitution of the Commission or the report? Are you challenging the report?"
The Counsel responded that the petition is challenging the Delimitation notification of 2020, 2021 and 2022.
Justice Kaul stated, "You are coming after 2 years. Now you also raise issues with respect to consequence of abrogation of Articles 370 and 35A."
The Counsel clarified that the abrogation of the said provisions have not been challenged in the writ.
Justice Kaul remarked, "You have jumbled up everything. So, you are really you are questioning the exercise of delimitation."
Seeking to provide some clarity regarding delimitation, Solicitor General, Mr. Tushar Mehta submitted
"As I have understood his prayer. It is two fold. First prayer is that the election commission can carry out delimitation and not delimitation commission. He says the census cannot be the census. The answer is in the delimitation commission. There are two kinds of delimitation. One is Geographical delimitation. Thereafter, one is undertaken by the Election Commission for reservation of seats. I will show two provisions from the State Reorganisation Act."
He further beseeched the Bench not to issue notice as representatives of all the respondents were present before the Court.
The Counsel for the petition sought further interference of the Bench -
"The delimitation draft is given, it would be placed before parliament, then it would be difficult."
The Bench stated that they cannot restrain the draft report from being tabled at the Parliament. It noted -
"Why did you sleep for so long to challenge the notification ?"
The petition filed through Advocate on Record Sriram Parakeet asserts 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 argues 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 challenges 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 is emphasised that the change not being proportionate with the respective population is 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.
The matter is to be next taken up on 30th Aug.
Case Title: Haji Abdul Gani Khan And Anr. v. Union of India And Anr. WP(C) No. 237 of 2022