'Seats Shouldn't Be Increased': Petitioner Concludes Arguments Before Supreme Court In Plea Challenging J&K Delimitation Orders

A Bench comprising Justices Sanjay Kishan Kaul and A.S. Oka heard submissions put forth by Senior Advocate, Mr. Ravi Shankar Jandhyala, representing the petitioners. The sheet anchor of the Senior Counsel's argument was 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.

He argued that the delimitation exercise was being carried out in the teeth of constitutional and statutory provisions. He further submitted that after the delimitation order was passed in the year 2008, no further delimitation exercise could have been undertaken. The Senior Counsel emphasised that post 2008, all delimitation related exercise can be carried out only by the Election Commission and not a Delimitation Commission. Mr. Jandhyala had concluded saying that -

"Though I have argued so many issues, I confine myself to the constitutional mandate that the seats should not be increased."

The Bench will hear the arguments of the Solicitor General of India, on behalf of the Union Government tomorrow.

On Wednesday, during the course of the hearing, Justice A.S. Oka, on multiple occasions, had highlighted that though the Senior Counsel for the petitioner has orally made submissions on the inconsistency in the provisions of the Jammu and Kashmir Reorganisation Act, 2019, the petition does not challenge the constitutional validity of such provisions.

Mr. Jandhyala averred that Article 32 of the Constitution of India can be invoked upon violation of fundamental right of a citizen without explicitly challenging the validity of the provisions of the concerned statute. He submitted that assailing the increase in the number of seats was an implied challenge to the constitutionality of the provisions of the 2019 Reorganisation Act.

However, Justice Oka, repeatedly pointed out that the petition assails the notifications issued pursuant to the 2019 Reorganisation Act for being contrary to the statutory provisions. He indicated that the same suggests that the petition is not challenging the 2019 Reorganisation Act itself. Justice Oka also reckoned that since the power to constitute the Delimitation Commission is drawn from the 2019 Reorganisation Act, not challenging the statute might act as an impediment to substantiate the challenge to the constitution of the Delimitation Commission. He categorically asked the Senior Counsel -

"You are saying that in petition under A. 32 even if there is no challenge to provisions of statute we can strike it out?"

Mr. Jandhyala also argued that in the second notification, delimitation for the States of Assam, Arunachal Pradesh, Manipur and Nagaland were omitted and the same is violative of Article 14 of the Constitution.

Justice Oka clarified that even if the argument is accepted that would not help his case, as delimitation being implemented in the States where it had been omitted by the second notification would not prevent delimitation from being imposed in Jammu and Kashmir.

Mr. Jandhyala responded that his Article 14 argument was the other way round. He submitted that if delimitation was not being implemented in the other similarly situated States, then it ought not to be implemented in Jammu and Kashmir as well.

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 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]