Supreme Court Dismisses Challenge To Delimitation In Jammu & Kashmir

Supreme Court Dismisses Challenge To Delimitation In Jammu & Kashmir

The Supreme Court dismissed the petition challenging the notifications for the delimitation of assembly constituencies in the Union Territory (UT) of Jammu and Kashmir (J&K).

The division bench comprising of Justices Sanjay Kishan Kaul and AS Oka while adjudicating the writ petition under Article 32 of the Constitution of India dealt with the primary issue of legality and validity of the action of constituting a Delimitation Commission for the Union Territory of Jammu and Kashmir under provisions of the Delimitation Act, 2002 and the exercise of delimitation undertaken by the Commission.

The petition was filed by two Srinagar residents, Haji Abdul Gani Khan and Dr. Mohammad Ayub Mattoo, against respondent- Union of India and others challenging the increase in the number of seats from 107 to 114 in the UT claiming that the same was ultra vires Articles 81, 82, 170, 330 and 332 of the Indian Constitution and Section 63 of the Jammu & Kashmir Re-organisation Act, 2019.

The petitioner argued that the respondents had no power to establish power to establish a Delimitation Commission under Section 3 of the Delimitation Act since only the Election Commission could carry out the process of delimitation after the notification of the Parliamentary and Assembly Constituencies Delimitation Order, 2008.

The plea also highlighted that Article 170 of the Constitution provides the next delimitation to be taken up after 2026, however, the Union Territory of J&K was singled out.

Senior Advocate Ravi Shankar Jandhyala, appearing for the petitioners, had submitted that increasing the number of seats was in violation of the constitutional amendment which froze any delimitation exercises till 2026.

He had also pointed out that four north-eastern States were excluded from the exercise, which was a violation of Article 14 (right to equality before the law).

The Court at the outset remarked, "the Constitutional Courts cannot interfere with the law made by the Legislature unless it is specifically challenged by incorporating specific grounds of challenge in the pleadings. The reason is that there is always a presumption of the constitutionality of laws. The burden is always on the person alleging unconstitutionality to prove it. For that purpose, the challenge has to be specifically pleaded by setting out the specific grounds on which the challenge is made. A Constitutional Court cannot casually interfere with legislation made by a competent Legislature only by drawing an inference from the pleadings that the challenge to the validity is implicit."

The Apex Court noted that, an opportunity was available to the petitioners to challenge the provisions of the J&K Reorganization Act, the petitioners chose not to do so. The Court also noted here that the petitioners are also not questioning the 2019 Presidential Order and the said declaration.

Firstly, the Court dealt with the issue of applicability of Article 170 having the title 'Composition of the Legislative Assemblies' to the Union Territory of J & K. Article 170 forms part of Chapter III under the title "The State Legislature."

The bench was of the view that the said article does not deal with the legislatures of Union Territory at all. Articles 239A and 239AA which are included in Part VIII of the Constitution are the Articles that deal with the creation of a body to function as legislature and Council of Ministers for certain Union Territories.

The Court observed, "as far as the Legislative Assembly of the Union territory of J&K is concerned, Article 170 will have no application as it forms a part of Chapter III of Part VI which deals with only the State Legislature. It has no application to the Legislatures of Union Territories. The reason is that the Legislative Assemblies of the concerned Union Territories will be governed by the law made by the Parliament in accordance with Article 239A and not by the provisions of Chapter III of Part VI. As Article 170 is not applicable to the Legislature of the Union Territory of J & K, the main thrust of the argument that certain provisions of the J&K Reorganisation Act and actions taken thereunder are in conflict with Article 170 and in particular Clause (3) thereof is clearly misconceived and deserves to be rejected."

Next the Court dealt with issue of delimitation of constituencies of the Legislative Assembly of the Union territory of J&K. The Court noted that there was nothing illegal about the exercise of delimitation/readjustment of the constituencies undertaken by the Delimitation Commission for the purposes of dividing the Union Territory into 90 constituencies on the basis of the 2011 census figures.

To address the contention that all delimitation related exercise can be carried out only by the Election Commission and not a Delimitation Commission, the Court referred to Section 62(2) of the Reorganization Act, 2019, which confers power on the Delimitation Commission to readjust constituencies as provided under Section 60 in the successor Union Territory of J&K into assembly constituencies, which in essence is the delimitation exercise.

Another challenge which was pressed was the Exclusion of the North-Eastern States- Arunachal Pradesh, Assam, Manipur and Nagaland from the purview of the Delimitation Commission constituted under the notification dated 6th March 2020.

The Apex Court that the two cannot be compared and observed, "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 unequals cannot be treated as equals. Hence, the argument based on the violation of Constitutional provisions including Article 14 deserves to be rejected."

Similarly, the manner in which delimitation exercises have since been carried out and implemented in Andhra Pradesh and Telangana, as well as Uttar Pradesh/Uttarakhand can also not be relied upon, it was held.

"In both the Acts [UP and AP Reorganisation], there is no provision which is pari materia with clause (b) of subSection (1) of Section 62 of the J&K Reorganisation Act which amended the provisions of the Delimitation Act 2002 in its applicability to the newly formed Union Territories by substituting the year 2001 with 2011," held the Court.

Further, the Court was of the view that Delimitation was to be conducted as per 2011 Census and not 2001 Census.

The Court noted a vague attempt was made by the learned senior counsel appearing for the petitioners to submit that the exercise which is undertaken for the newly created Union territory of J&K was not undertaken on the basis of the Uttar Pradesh Reorganisation Act, 2000 and Andhra Pradesh Reorganisation Act, 2014.

The Apex Court reckoned that in both the Acts, there was no provision which is pari materia with clause (b) of subSection (1) of Section 62 of the J&K Reorganisation Act which amended the provisions of the Delimitation Act 2002 in its applicability to the newly formed Union Territories by substituting the year 2001 with 2011.

In conclusion, the Apex Court found no merit in any of the contentions raised by the petitioner and dismissed the petition, however it clarified the findings rendered in the judgment are on the footing that the exercise of power made in the year 2019 under clauses (1) and (3) of Article 370 of the Constitution is valid, the Court did not deal with the issue of exercise of powers which was the subject matter of petitions pending before the Top Court.