Before a Bench of Justices Sanjay Kishan Kaul and Abhay Shreeniwas Oka, the advocate appearing for the petitioner submitted that he's challenging the number of seats and division and readjustment in Jammu & Kashmir.
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 challenged 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.
Though the advocate wanted to argue on Article 170 today itself, the Court was not persuaded enough.
"10 minutes you will argue today and then later…"
Solicitor General Tushar Mehta, at the start of the hearing itself pushed for an adjournment citing that he wasn't sufficiently prepared.
When asked on the time required, he said,
"I am not sure of my knowledge on the issue to be able to answer that now."
The advocate then pointed out that a Minister had announced elections in Kashmir in November.
"Everything and anything are challenged today. Everything is urgent also", the Bench snapped.
As the hearing reached its fag end, an advocate mentioned an IA seeking delimitation of seats similar to Jammu & Kashmir for Andhra Pradesh and Telangana and sought for it to be tagged with the main matter.
"How can we tag? The IA can't be heard with this", the Bench said while issuing in that matter.
The Ministry of Home Affairs, on behalf of the Union of India and the Union Territory of Jammu and Kashmir had filed a response along with the Election Commission of India before the Supreme Court in the first week of October, opposing the pleas challenging the formation of the Delimitation Commission.
Broadly, the counter relied on the following grounds to oppose the petition:
• Delimitation orders once gazetted cannot be changed,
• No contradictions in the provisions of J&K Re-Organization Act 2019,
• Not violative of Article 170 of the Constitution
The Union 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.
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.
The petitioners were represented by Advocates Ravi Shankar Jandhyala, Sriram Parakkat and MS Vishnu Shankar.
Case Title: Haji Abdul Gani Khan And Anr. v. Union of India And Anr. WP(C) No. 237 of 2022
