Article 170 Of Constitution Not Applicable To Legislatures Of Union Territories: Supreme Court In J&K Delimitation Case

The Supreme Court observed that Article 170 of the Constitution deals with only the State Legislature and thus has no application to the Legislatures of Union Territories.

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, the bench of Justices Sanjay Kishan Kaul and Abhay S Oka observed.

The court observed thus in its judgment 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.

In this case, the petitioner had contended that the exercise undertaken of delimitation/readjustment of the Assembly and Parliamentary Constituencies of Union Territory of J & K by appointing the Delimitation Commission under the notification dated 6th March 2020 is completely in violation of 2nd proviso to clause (3) of Article 170. [2nd proviso to clause (3) of Article 170 of the Constitution lays down that until the figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust the total number of seats in the Legislative Assembly readjusted on the basis of the 1971 census and the division into territorial constituencies as may be readjusted on the basis of 2001 census. ]

The court therefore considered the issue of applicability of Article 170 having the title “Composition of the Legislative Assemblies” to the Union Territory of J & K. 

The bench noted that, on a conjoint reading of Articles 3,4 and 239A,

a) Parliament by making a law can convert an existing State into one or more Union territories;

b) Parliament is empowered by law to create a body of legislature for the Union territories of Puducherry and J&K. Accordingly, sub-Section (2) of Section 14 of the J & K Reorganisation Act provides that there shall be a Legislative Assembly for the Union Territory of J & K.

c) Even if the law made by Parliament creating a body of legislature for Union territories of Puducherry and J&K has the effect of amending certain parts of the Constitution, it shall not be deemed to be an amendment of the Constitution for the purposes of Article 368.

Taking note of this position, the bench observed:

"Hence, 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"

The court also noted that the petitioner's counsel (Senior Advocate Ravi Shankar Jandhyala) , during arguments, attempted to assail the validity of certain provisions of the J&K Reorganisation Act. But there was no challenge incorporated in the writ petition to the constitutional validity of any of the provisions of the J&K Reorganisation Act. In response to this, the counsel contended that the challenge to the relevant provisions of the J&K Reorganisation Act is implicit in this writ petition. In this regard, the court observed:

"There cannot be any doubt that when a party wants to challenge the constitutional validity of a statute, he must plead in detail the grounds on which the validity of the statute is sought to be challenged. In absence of the specific pleadings to that effect, Court cannot go into the issue of the validity of statutory provisions. 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 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."

Case details

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

For Petitioner(s) Sriram P., AOR

For Respondent(s) Ms. Taruna Ardhendumauli Prasad, AOR Mr. Arvind Kumar Sharma, AOR Mr. K.M. Nataraj, ASG Mr. Sharath N. Nambiar, Adv. Mr. Vatsal Joshi, Adv. Mr. Haji Abdul G. Khan, Adv. Mr. Vinayak S. Sharma, Adv. Ms. Indira Bhaskar, Adv. Mr. Chitransh Sharma, Adv. Mr. A. Udupa, Adv. Mr. Nakul C., Adv. Mr. Gurmeet Singh Makker, AOR Mr. Amit Sharma, AOR Mr. Dipesh Sinha, AOR Ms. Aparna Singh, Adv. Ms. Sakshi Upadhayaya, Adv. Mr. Shailesh Madiyal, AOR Mr. Vaibhav Sabharwal, Adv. Mr. Parth Awasthi, Adv. Mr. Vinayaka Pandit, Adv. Mr. Rajan Parmar, Adv. Mr. Akshay Kumar, Adv. Ms. Rakhi, Adv.

Headnotes

Jammu and Kashmir Delimitation - There is no illegality associated with the delimitation/readjustment of Parliamentary constituencies of the Union Territory of J & K undertaken by the Delimitation Commission - there is no illegality associated with the establishment of the Delimitation Commission under the impugned Order dated 6th March 2020 - There is nothing wrong if the Central Government extended the period of appointment of the Chairperson till the task of delimitation/readjustment was completed - 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. We are aware that the issue of the validity of the exercise of the said powers is the subject matter of petitions pending  - Nothing stated in this judgment shall be construed as giving our imprimatur to the exercise of powers under clauses (1) and (3) of Article 370 of the Constitution. (Para 31 - 46)

Constitution of India, 1950 ; Article 170 - Article 170 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. (Para 23)

Practice and Procedure - When a party wants to challenge the constitutional validity of a statute, he must plead in detail the grounds on which the validity of the statute is sought to be challenged. In absence of the specific pleadings to that effect, Court cannot go into the issue of the validity of statutory provisions. 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 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. (Para 14)

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