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

While upholding the delimitation exercise carried out in the Union Territory of Jammu and Kashmir, the Supreme Court has rejected the arguments raised by the petitioners on the basis of comparisons with the Telangana-Andhra Pradesh and North Eastern states.

The petitioners' case was mainly based on Article 170 (3) of the Constitution of India that freezes delimitation exercise till the first census after 2026. In this regard, they referred to the situation after the bifurcation of the State of Andhra Pradesh in 2014. They referred to an answer given by Ministry of Home Affairs in the Parliament in 2021 regarding the delimitation in the State of Telangana. The answer was that the total number of seats in the Assembly of each State will be readjusted after the first census is published after the year 2026. The petitioners also cited the opinion given by the Attorney General that Article 170 will prevail over the provision in the AP Reorganisation Act.

However, the Supreme Court held that Article 170(3) is not applicable to a Union Territory, which J&K at present is. Hence, the comparison with AP-Telangana was found to be misplaced. Article 239A which deals with the creation of local legislatures and/or council of ministers for certain Union Territories is applicable for the UT of J&K. The said provision does not provide for any such freezing period.

"The petitioners cannot rely upon the answer given by Hon’ble Minister in the Lok Sabha as it deals with delimitation of Constituencies in Telangana in the context of Article 170. In any event, the said opinion as well as the answer given by the Hon’ble Minister have no bearing on the interpretation of the J&K Reorganisation Act"

North Eastern States And The UT of J&K Are Not Similarly Situated, Hence No Discrimination

On 06.03.2020, a Delimitation Commission was appointed by the Central Government to carry out a delimitation exercise in the Union Territory of J&K along with the State of Arunachal Pradesh, Assam, Manipur and Nagaland. Another notification was issued on 03.03.2021 to amend the first notification to the extent that it deleted the States of Arunachal Pradesh, Assam, Manipur and Nagaland from the purview of the Delimitation Commission.

Responding to the petitioner’s ground of discrimination based on the withdrawal of the delimitation notification for the north-eastern States of Assam, Arunachal Pradesh, Manipur and Nagaland, the Bench noted -

“...discrepancies in census figures of 2001 in relation to these States were pointed out. In fact, it is stated that a number of notices have been issued regarding the said discrepancies. Therefore, the said letter was issued with the approval of the competent authority in which it was stated that it may not be conducive to grant an extension for the process of delimitation in the four North-Eastern States.”

It noted that two unequals cannot be treated equally and thus, it rejected the argument based on the violation of the Constitutional provisions including Article 14.

"The position and the status of the newly created Union Territory of J&K under the Constitution is completely different from the four north-eastern States. 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 unequal cannot be treated as equals. Hence, the argument based on the violation of Constitutional provisions including Article 14 deserves to be rejected."

A Bench comprising Justice S.K. Kaul and A.S. Oka passed the order while dismissing a petition which challenged the delimitation exercise carried out for redrawing the Legislative Assembly and Lok Sabha constituencies in the Union Territory of Jammu & Kashmir.

It also noted that Parliament can by enacting a law convert an existing State into one or more Union Territories. The Parliament has the power to create a body of legislature for the Union Territory of Jammu and Kashmir by way of a statute and for that purpose if some amendments are made to the Constitution by the said statute, it shall not be deemed to be an amendment under Article 368 of the Constitution of India.

Factual Background

On 05.08.2019, in exercise of power under Clause (1) of Article 370 of the Constitution of India, the President of India issued the Constitution (Application to Jammu and Kashmir) Order. By the said order the provisions of the Constitution was made applicable to the State of Jammu and Kashmir. On 06.08.2019, a declaration under Clause (3) of Article 30 was made by the President whereby it was declared that all the clauses of Article 370 shall cease to be operative. On 31.10.2019, the Jammu and Kashmir Reorganisation Act, 2019, which provided for reorganisation of the State of Jammu and Kashmir by dividing it into two Union Territories came into force. A new Union Territory of Ladakh was also created.

Section 13 of the Reorganisation Act, 2019 makes Article 239A, which confers power on the Parliament to enact a law for creating a legislature for the Union Territory, applicable to the Union Territory of Jammu & Kashmir. By virtue of Section 62 of the Reorganisation Act, 2019, the Delimitation Act, 2002 was made applicable to the erstwhile State of Jammu and Kashmir. 

As per Section 60(1) of the Reorganisation Act, 2019 the seats in the Legislative Assembly of the Union Territory of Jammu and Kashmir is to be increased from 107 to 114. Moreover, Section 14(4) provides that 24 seats in the Legislative Assembly of the Union Territory shall remain vacant and not be taken into account for reckoning the total membership of the Assembly.

Analysis by the Supreme Court

Constitutional Validity Of Provisions of Reorganisation Act, 2019 Not Challenged

The Court noted that though the petition did not challenge the constitutional validity of the provisions of the Reorganisation Act, 2019, the Counsel for the petitioner has assailed certain provisions while making his oral submissions stating that the challenge is implicit. However, the Court went on to observe that when a challenge is made to constitutional validity of a statute the grounds for the same ought to be pleaded in detail. It further noted that, in absence of specific pleadings, the Court cannot go into the issue of validity of statutory provisions as, in India, there is a presumption of constitutionality of laws. Therefore, the burden to prove unconstitutionality lies on the person claiming it.

“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…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 State gets a proper opportunity to defend the legislation only if the State is made aware of the grounds on which the legislation is sought to be challenged.”

Considering that the petitioners have neither assailed the provisions of the Reorganisation Act, 2019 nor the Presidential Order of 2019, the Court proceeded on the footing that they are valid.

Parliament By Law Can Convert Existing State Into One Or More Union Territories

On perusal of Articles 3, 4 and 239A of the Constitution the Court inferred that Parliament can by way of an enactment convert an existing State into one or more Union Territories. It can also create a body of legislature for the Union Territories of Puducherry and J&K. The Court also observed that if for the purpose of creating a body legislature of the UTs, certain parts of the Constitution are required to be amended, it would not amount to amendment under Article 368 of the Constitution.

Article 239A And Not Article 170(3) Is Applicable To Legislative Assembly of UTs

With respect to seats in the State Legislative Assembly, the Court noted that under the Constitution of Jammu and Kashmir 24 seats were earmarked for Pakistan occupied territory. Out of the remaining 87 seats, 7 were reserved for Scheduled Castes and Scheduled Tribes. As per the Reorganisation Act, 2019, though the seats are contemplated to be increased from 107 to 114, the seats covered by Pakistan occupied territory would remain the same. This would make the total number of seats for holding elections to the Legislative Assembly of the UT of J&K as 90.

The petitioner had argued 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. However, the Court observed that Article 239A and not Article 170 was applicable to the Legislative Assembly of UTs.

Delimitation Commission Can Conduct Delimitation Exercise

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 Reorganisation 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.

Delimitation Is To Be Conducted As Per 2011 Census And Not 2001 Census

It was also taken into consideration that by virtue of Section 62(b)(1) of the J&K Reorganisation Act, the census year 2001 stands substituted by 2011 in relation to the Legislative Assembly of the Union Territory of J & K. Therefore, the new delimitation has to be undertaken as per the census of 2011, as opposed to the earlier one done on the basis of 2001 census.

Challenge To Extension Of Term Of Delimitation Commission Is Without Merit

The challenge to the extension of the term of the Delimitation Commission by subsequent notifications was also found to be without merit, as the Delimitation Act, 2002 does not prescribe any term of appointment of the Chairperson.

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.  

Case details

Haji Adbul Gani Khan And Anr. v. Union of India And Ors.| 2023 LiveLaw (SC) 98 | WP(C) No. 237 of 2022 | 13 Feb 2023 | Justice Sanjay Kishan Kaul and Justice Abhay S. Oka

Case details

Haji Abdul Gani Khan vs Union of India | 2023 LiveLaw (SC) 98 | WP(C) 237 OF 2022 | 13 Feb 2023

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