"Idea Is To Give Immediate Democracy To J&K" : Centre Says On Delimitation In Jammu & Kashmir; Supreme Court Reserves Judgment

On Wednesday, the Bench comprising Justices Sanjay Kishan Kaul and A.S. Oka had heard the submissions of Senior Advocate, Mr. Ravi Shankar Jandhyala, representing the petitioners. His primary challenge to the impugned notifications was on the touchstone of the scheme envisaged in Article 170(3) of the Constitution of India. He argued that the said provision had frozen delimitation till the first census after 2026. However, Justice Oka had highlighted that though the Senior Counsel 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. On Thursday, while opening his counter arguments, one of the initial submissions of the Solicitor General of India, Mr Tushar Mehta was that the constitutionality of the provisions of the Reorganisation Act have not been challenged in the present writ petition. The Solicitor General cited the Constitution Bench judgment of the Apex Court in Mangal Singh And Anr. v. Union of India to argue that on previous occasions the 'constitutionally fixed number of MLAs were reorganised in Reorganisation Acts'. He further submitted -

"The idea was that the last delimitation had taken place in 1995. The Govt's idea was to give immediate democracy to J&K. To wait till 2026 was legislatively found to be unwise."

Mr. Mehta emphasised that the Parliament was aware about the two organs, the Election Commission and the Delimitation Commission, which is evident from the definition clause (Section 59) of the 2019 Reorgansiation Act. He submitted that as per the scheme of the Reorganisation Act the first delimitation exercise 'shall' be carried out by a Delimitation Commission, which is a temporary body. The rationale behind such a decision was explained as under -

"The intention is that the first delimitation is not by the Election Commission who is busy holding elections throughout the country. The first delimitation is to be done by the Delimitation Commission and then it can be done by the Election Commission. This is temporary exigencies being taken care of. The peculiar circumstances under which entities are coming into being. Before 2019, Delimitation Act was not applicable to J&K. Re-adjustment of constituencies in the first delimitation 'shall' be done by the Delimitation Commission."

The Solicitor General controverted the petitioner's argument that the provision of the 2019 Reorganisation Act was not consistent with each other or the constitutional framework. He submitted -

"There is no dichotomy inter-se or with any constitutional provisions."

Coming to the submission of the petitioner that singling out Jammu and Kashmir for the delimitation exercise, when by way of a second notification the Central Government had removed delimitation for the States of Assam, Arunachal Pradesh, Manipur and Nagaland 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 next contention raised was why only J&K. Why have you left out north northeastern States? The answer to it is that the delimitation is made applicable to this area in 2019. How we bifurcated between J&K and North-Eastern States? There were reports of internal disturbance in the North Eastern State at that point in time. The President has the power in the Representation of People Act to make this bifurcation. The President can defer delimitation of any particular State. I don't think in case of delimitation there can be any A. 14 argument."

Mr. Mehta also argued on the aspect of delay in filing the petition.

"Kindly recall, in 2020 the Delimitation Commission was constituted. Thereafter, repeatedly causes of action kept on arising where objection was invited etc. But the petition was filed in 2022. Delimitation is over and it has been Gazetted as well."

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 pointed out that when a Memeber 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. Mr. Jandhyala submitted that back then the Union Government had justified the freezing till 2026 and now they are making diametrically opposite submissions. It was also highlighted that after the delimitation order of 2008, the Election Commission was entrusted with further exercises pertaining to delimitation. However, he averred that the Election Commission had abdicated its duties.

The petition filed through Advocate-on-Record Sriram Parakkat 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 petitioner was represented by Ravi Shankar Jindala Senior Counsel, Sriram Parakkat and MS Vishnu Shankar advocates

[Case Title: Haji Abdul Gani Khan And Anr. v. UoI And Ors. WP(C) No. 237/2022]