Why constitutional validity of J&K Reorganisation Act clause went unchallenged: Supreme Court

The provision confers Delimitation Commission with the power to “carry out” the re-adjustment of constituencies in the Union Territory formed after the abrogation of Article 370 in the erstwhile State.

November 30, 2022 08:56 pm | Updated December 01, 2022 12:21 am IST - NEW DELHI

Supreme Court, in New Delhi. File

Supreme Court, in New Delhi. File | Photo Credit: PTI

The Supreme Court on Wednesday quizzed petitioners about the reason for not challenging the constitutional validity of a specific provision in the Jammu and Kashmir Reorganisation Act which confers the Delimitation Commission with the power to “carry out” the re-adjustment of constituencies in the Union Territory formed after the abrogation of Article 370 in the erstwhile State.

A Bench of Justices Sanjay Kishan Kaul and A.S. Oka said the petition filed by Srinagar residents, Haji Abdul Gani Khan and Mohammad Ayub Mattoo, was limited to a challenge of the notification issued by the Centre in March 2020 establishing the Jammu and Kashmir Delimitation Commission and a second one in March 2021 extending its term for the purpose of conducting delimitation only for Jammu and Kashmir.

Justice Oka said the notifications drew their power specifically from Section 62(2) of the 2019 Act. Section 62(2) provides for the readjustment of constituencies to be carried out by the Delimitation Commission.

The court asked why the petitioners without challenging the source of the government’s notifications, that is Section 62(2), had confined their challenge solely to the notifications.

The petitioners, represented by senior advocate Ravi Shankar Jandhyala and advocates Sriram Parakkat and M.S. Vishnu Shankar, argued that only the Election Commission of India (ECI), under Section 60 of the 2019 Act, was empowered to conduct the delimitation exercise. They further argued before the Bench that Article 170 of the Constitution barred delimitation exercise on the basis of the 2011 census. It had to either happen on the basis of 2001 census or await “the first census after the year 2026”, they argued.

The petitioners alleged that Sections 60 and 61 of the 2019 Act, which defined the role of the ECI in the process of delimitation of constituencies, were in contradiction to Section 62.

The plea said that if August 5, 2019 Act was to unite the Jammu and Kashmir with India, then the delimitation process had defeated the “new order” of “One Nation One Constitution”. The petitioners had questioned why Jammu and Kashmir was “singled out” for delimitation in the 2021 notification. The earlier March 6, 2020 one had constituted the Delimitation Commission chaired by former Supreme Court judge, Justice Ranjana P. Desai, for the delimitation of Assembly and Parliamentary constituencies in the Union Territory of Jammu and Kashmir as well as Assam, Arunachal Pradesh, Manipur and Nagaland.

The government has countered that there were two alternative mechanisms to carry out delimitation for the Union Territory of Jammu and Kashmir. By virtue of Sections 60-61, while the power to determine delimitation was conferred on the ECI, Section 62(2) and 62(3) conferred powers to carry out delimitation on the Delimitation Commission.

The Home Ministry and the ECI argued that the delimitation orders had already acquired the “force of law”.

The ECI and the Ministry maintained that the delimitation order had already been brought into effect from May 20, 2022. The delimitation order could not be “re-agitated” in a court once it had gained finality by publication in the gazette.

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