Holding no “illegality” in the delimitation exercise carried out by the Centre in the reorganised Union territories of Jammu & Kashmir and Ladakh, the Supreme Court on Monday dismissed a petition challenging the March 2020 decision to form a delimitation commission and said that such an exercise became necessary as the total assembly constituencies were increased from 107 to 114 under the J&K Reorganisation Act passed by Parliament in 2019.
As the issue of J&K’s reorganisation and the Presidential order of August 2019 scrapping Article 370 granting special status to J&K is pending challenge in separate proceedings before the Supreme Court, the judgment by a bench of justices Sanjay Kishan Kaul and AS Oka did not examine the validity of these decisions.
It said, “We are aware that the issue of the validity of the exercise of the said powers is the subject matter of petitions pending before this court. We have not dealt with the issue of validity. 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.”
The decision of the court came on a petition filed by two Srinagar residents who had challenged the March 6, 2020 order without challenging the Presidential order bifurcating the state into two Union Territories or the J&K Reorganisation Act providing for the operation of the Delimitation Act, 2002 within J&K and the increase of seats from 107 to 114. Of these, 24 seats were to remain vacant by virtue of being under occupation of Pakistan.
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As there was no challenge to the reorganisation or the Presidential order of 2019, the bench said, “We clarify that the 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 will have to proceed on the footing that the 2019 Presidential order, the said declaration and the provisions of the J&K Reorganisation Act are valid.”
The court said, “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.” Though the court gave an opportunity for the petitioners to challenge the reorganisation Act, they chose not to do so, the judgment said.
Three main arguments were raised by the petitioners to challenge the delimitation exercise. It questioned the increase in the number of seats for the J&K legislative assembly which is fixed under the Constitution. Next, the appointment of a delimitation commission headed by a retired Supreme Court judge was challenged claiming that the election commission and not delimitation commission should undertake such an exercise.
And finally, the petition filed by advocate Sriram Parakatt questioned the exclusion of the northeastern states of Arunachal Pradesh, Assam, Manipur and Nagaland from the delimitation exercise proposed in March 2020. By a subsequent order of March 2021, the four states were excluded citing security reasons. The Delimitation Commission headed by Justice (Retd) Ranjana Prakash Desai concluded its exercise with regard to J&K and Ladakh and the Centre published a draft order on March 14, 2022.
The 54-page judgment written by justice Oka said, “We hold that there is no illegality associated with the establishment of the Delimitation Commission under the impugned order dated March 6, 2020.” The Delimitation Commission, it added, “had to undertake the exercise of delimitation or readjustment on the basis of the census figures of 2011 as the earlier exercise of delimitation of the constituencies of the erstwhile state was not made on the basis of the census figures of 2011.”
It further held, “There is nothing illegal about the exercise of delimitation/readjustment of the constituencies undertaken by the Delimitation Commission for the purposes of dividing the Union territory into 90 constituencies on the basis of the 2011 census figures.”
The last census in J&K was conducted in 1985, the petition stated. It was argued that the J&K Assembly had amended Section 47 of J&K Constitution in 2002 which had put a freeze on any delimitation exercise until after 2026.
The J&K Reorganisation Act came into force on October 31, 2019. Section 62 of this Act applied the Delimitation Act, 2002 to the newly formed UT which led to the issuance of the March 2020 notification. Section 60 of the said Act increased the number of seats in the legislative assembly of the UT of J&K from 107 to 114.
The bench said, “This submission calls for no consideration as there is no challenge to the validity of sub-section (1) of Section 60 of the J&K Reorganisation Act.”
The Centre represented by solicitor general Tushar Mehta opposed the petitions citing a substantial delay in approaching the court and justified the exclusion of four NE states citing pending litigation in courts with regard to the delimitation exercise.
On examining the constitutional scheme, the bench noted that Articles 2 and 3 of the Constitution enabled Parliament to create two new Union territories. The J&K Reorganisation Act was passed under Article 4 of the Constitution which permits Parliament to incorporate such provisions as to representations in Parliament and legislature of the state. “Such law which is made under Article 3 can always provide for readjustment of the constituencies in the newly constituted states or Union territories through the Delimitation Commission,” it said.
Further, the bench cited Section 10A of the Delimitation Act to justify the exclusion of the four states from the March 2020 order. It said, “The position and the status of the newly created Union territory of J&K under the Constitution is completely different from the four northeastern states… In its applicability to the UT of J&K, Sections 4 and 9 of the Delimitation Act, 2002 stand amended by requiring readjustment to be carried out on the basis of the census figures of 2011. In case of the northeastern states, there is no such amendment. Therefore, two unequals cannot be treated as equals.”
The bench even faulted the petitioners for approaching the court in March last year when the Delimitation Commission’s report “was substantially acted upon” by the Centre with the publication of a draft order. With the court paving the way for the delimitation exercise, further readjustment can only be carried out after the next census to be conducted in 2026.
