Challenge to J&K Delimitation Exercise : Supreme Court Warns Centre Of Imposing Cost If Counter Not Filed In A Week

On 13th May, 2022, while issuing notice in the petition, the Apex Court had asked the Union Government, UT of Jammu and Kashmir and the Election Commission to file their response.

A Bench comprising Justices Sanjay Kishan Kaul and A.S. Oka indicated that it is not imposing cost only because the young lawyer appearing for the Union Government had assured it that the counter affidavit would be filed within a week. However, it was made abundantly clear that if the counter-affidavit is not filed within the time sought, an amount of Rs. 25,000 has to be deposited with the Registry of the Apex Court in order to bring it on record.

"We note with great regret that despite 6 weeks' time being granted to file counter affidavit…it has not seen the light of the day. We do not appreciate this and would have imposed cost but for the fact that a young Counsel appearing assures the Court that it would be filed within a week. If not filed/filed belatedly it would be taken on record subject to depositing Rs. 25000 cost."

On Tuesday, at the outset, Senior Advocate Ravi Shankar Jandhyala, the Counsel for the petitioner apprised the Bench that though the Union Government was supposed to file its counter affidavit within 6 weeks from the last date of the last hearing, they have not yet filed it. He claimed that in the meanwhile they are proceeding with election on the basis of the delimitation that is under challenge.

Justice Kaul reckoned "You (Union Government) don't file affidavits in time. Even if I say one year, you'll not file affidavit in time."

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 matter is to be next taken up on 29th September, 2022.

Case Title: Haji Abdul Gani Khan And Anr. v. Union of India And Anr. WP(C) No. 237 of 2022