Supreme Court Seeks Responses Of Centre & ECI On Plea Challenging J&K Delimitation Exercise

The Supreme Court, on Friday, asked the Union Government, UT of Jammu and Kashmir and the Election Commission to file their response in a plea, inter alia, challenging the Delimitation exercise undertaken in the Union Territory of Jammu and Kashmir pursuant to the notifications of 2020, 2021 and 2022. "...all respondents being represented before us in order to examine it is necessary to have the stand of the respondent filed on affidavit. The affidavits be filed within 6 weeks.A Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh noted that the challenge in the present petition does not extend to assailing the abrogation of Articles 370 and 35A, though some allegations have been raised in the petition in this regard. According, it recorded in the order - "On our specific query Ld. Counsel for petitioner submits that he is not assailing the abrogation of Articles 370 and 35A of Constitution of India. Thus, the allegations in that behalf are relevant and to be ignored."The matter will be next considered on August 30.At the outset, Senior Advocate Ravi Shankar Jandhyala, the Counsel for the petitioner, submitted 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. "Contrary to the scheme of the Constitution expressed under Articles 170(3), 55, 85, 82, 330, 332. The essence of this provision is that the delimitation is frozen till the first census after 2026. Therefore the alteration of boundaries cannot be done because of these provisions."Justice Kaul noted, "Delimitation Commission was constituted quite some time back. You did not challenge it then."The Counsel responded that the challenge was not to the constitution of the Commission, but the delimitation exercise being carried out in the teeth of constitutional and statutory provisions. "I am not challenging the constitution of the commission. I am on two issues. 2002 delimitation became inappropriate in 2007. Thereafter, delimitation order was passed in 2008. Once it is inappropriate no provision can be used from therein. Only the election commission can conduct elections and in case of boundary dispute and name changes only that can be done."Perplexed about the real challenge in the present petition, Justice Kaul enquired - "You are challenging the commission for J&K. Are you seeking to challenge the constitution of the Commission or the report? Are you challenging the report?"The Counsel responded that the petition is challenging the Delimitation notification of 2020, 2021 and 2022. Justice Kaul stated, "You are coming after 2 years. Now you also raise issues with respect to consequence of abrogation of Articles 370 and 35A."The Counsel clarified that the abrogation of the said provisions have not been challenged in the writ. Justice Kaul remarked, "You have jumbled up everything. So, you are really you are questioning the exercise of delimitation."Seeking to provide some clarity regarding delimitation, Solicitor General, Mr. Tushar Mehta submitted"As I have understood his prayer. It is two fold. First prayer is that the election commission can carry out delimitation and not delimitation commission. He says the census cannot be the census. The answer is in the delimitation commission. There are two kinds of delimitation. One is Geographical delimitation. Thereafter, one is undertaken by the Election Commission for reservation of seats. I will show two provisions from the State Reorganisation Act."He further beseeched the Bench not to issue notice as representatives of all the respondents were present before the Court. The Counsel for the petition sought further interference of the Bench - "The delimitation draft is given, it would be placed before parliament, then it would be difficult."The Bench stated that they cannot restrain the draft report from being tabled at the Parliament. It noted - "Why did you sleep for so long to challenge the notification ?"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...

Supreme Court Seeks Responses Of Centre & ECI On Plea Challenging J&K Delimitation Exercise

Sohini Chowdhury

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