J&K Delimitation Orders Finalised, Can't Be Challenged After Gazette Notification : Centre, ECI Tell Supreme Court

The Ministry of Home Affairs, on behalf of the Union of India and the Union Territory of Jammu and Kashmir has filed a response along with the Election Commission of India before the Supreme Court opposing the pleas challenging the formation of the Delimitation Commission.

The responses have been filed in the petition filed by J&K residents Haji Abdul Gani Khan and Dr. Mohammad Ayub Mattoo in 2022 challenging the delimitation exercise.

According to the petitioners, 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 plea also challenges the increase in number of seats from 107 to 114 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.

JOINT REPLY OF UNION OF INDIA AND UT OF JAMMU AND KASHMIR

The response filed by the Ministry stated that the Delimitation Commission was setup two years prior to the date of institution of the Writ Petition and has since completed its exercise and its orders have been issued via the Gazette of India and the Petitioners have failed to justify the delay.

DELIMITATION ORDERS ONCE GAZETTED CANNOT BE CHANGED

The Union further stated that, "Section 10(2) of the Delimitation Act, 2002 bars the challenge to the orders of the Delimitation Commission once they are published in the Gazette of India." The counter-affidavit stated that the principle was also upheld in the matter of Meghraj Kothari vs Delimitation Commission. Thus if the prayers of the petitioners are allowed, then the orders of the Delimitation Commission which had attained finality when they were published in the Gazette of India would be rendered infructuous. The counter of the Union also stated that it would be violative of Article 329 of the Constitution.

NO CONTRADICTIONS IN THE PROVISIONS OF J&K RE-ORGANIZATION ACT 2019  

The Counter filed by the Union also stated that the Election Commission had stated that representations made by the Petitioners are completely misplaced and have been arrived at without a clear and comprehensive understanding of the Jammu and Kashmir Reorganisation Act 2019. It was also pointed out that the Election Commission has stated that since the Delimitation Commission is being constituted under section 62 of the 2019 Act, there appeared no necessity for any separate action by the Election Commission.

The Union's reply also stated that there is no contradiction between Section 60, 61 and 62 of the 2019 Act. "It is submitted that the 2019 Act provides for two alternative mechanisms to carry out delimitation for the Union Territory of Jammu and Kashmir. By virtue of Sections 60-61, while the power to determine delimitation is conferred on Election Commission, Section 62(2) and 62(3) confers powers to carry out delimitation on the Delimitation Commission constituted under Section 3 of the Delimitation Act." There exists a synergy between Sections 60, 61, 62 and 63 of the 2019 Act and is free from any contradictions and the 2019 Act provides for two alternative mechanisms in order to conduct the delimitation for the Union Territory of Jammu and Kashmir, the reply added.

NOT VIOLATIVE OF ARTICLE 170 OF THE CONSTITUTION

The reply filed by the Ministry of Home Affairs submitted that the petitioners have failed to acknowledge and appreciate Article 4 of the Constitution which grants power to make supplemental provisions and modifications including the delimitation which do not amount to amendment of the Constitution. The Union cited the judgment of Constitution Bench in Mangal Singh vs Union of India where the a challenge was made to the constitutionality of Punjab Reorganisation Act contending that it violated Article 170 of the Constitution. The Union stated that the 5-judge bench had made it clear that any law which amends the First and Fourth Schedule or which makes any supplemental and consequential provisions should not be deemed to be amendment of the Constitution within the meaning of Article 368. Thus, the Union submitted that, "the instant petitioners have also raised similar issues with respect to the denial of equality as a result of the delimitation but the same should stand dismissed in view of the aforesaid judgment."

REPLY OF THE ELECTION COMMISSION OF INDIA

The Election Commission of India submitted at the outset that grievance of the petitioner is over the constitution of the Delimitation Commission and the order of the constitution of the Delimitation Commission, its scope and its tenure were passed by the Central Government while exercising the powers under Section 3 of the Delimitation Act, 2002 and therefore the Election Commission "has no jurisdiction to comment on the vires of the same."

DELIMITATION ORDERS ONCE GAZETTED HAVE ACQUIRED THE FORCE OF LAW

The reply filed through the Secretary of Election Commission of India also stated that in terms of Section 10(2) of the Delimitation Act, the Delimitation Orders which have been published vide Gazette Notifications and have taken effect, have acquired the force of law. The Election Commission also mentioned that before the final order was published a number of public sitting was held to afford full opportunity to members of the public to make oral and written submissions to the Delimitation Commission.

BAR ON JUDICIAL INTERFERENCE

The Election Commission of India further submitted that there is a bar on judicial interference, under Article 329(a) of the Constitution of India, regarding the validity of any law relating to the delimitation of constituencies. The reply pointed out the Supreme Court in Meghraj Kothari vs Delimitation Commission had held that once order is published in the Gazette of India, such an order cannot be reagitated before a Court of Law. The Commission also pointed out that similar observations were made by the Supreme Court in Assn. of Residents of Mhow (ROM) vs Delimitation Commission of India and J&K National Panthers Party vs Union of India.

Case Title: Haji Abdul Gani Khan And Anr. v. Union of India And Anr. WP(C) No. 237 of 2022