The Supreme Court on Friday directed the Centre to file an affidavit responding to a challenge to the delimitation exercise undertaken in Jammu and Kashmir following the abrogation of Article 370 and bifurcation of the State.
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However, the court did not accept an oral plea made by petitioners to stay the tabling of the final draft report of the Jammu and Kashmir Delimitation Commission in Parliament.
“Can we restrain them from tabling it in the Parliament? If that is so, why did you take two years to challenge the delimitation notification?” a Bench led by Justice Sanjay Kishan Kaul asked the petitioners, Haji Abdul Gani Khan and Mohammad Ayub Mattoo, represented by senior advocate Ravi Shankar Jandhyala and advocates Sriram Parakkat and M.S. Vishnu Shankar.
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The three-member Jammu and Kashmir Delimitation Commission led by former Supreme Court judge, Justice Ranjana Prakash Desai, submitted the final draft report early in May, notifying the new boundaries, names and number of Assembly constituencies in Jammu and Kashmir, paving the way for the first-ever Assembly elections in the Union Territory that was carved out of the erstwhile State of J&K.
“Are you challenging the report or the formation of the Commission...? You have come after the report has been filed,” Justice Kaul addressed Mr. Jandhyala.
The court ordered the government to file its affidavit in six weeks and gave the petitioners two weeks to submit their rejoinder. The Election Commission of India has also been asked to respond to the petition. The case was posted for August 30.
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The petition also questioned why J&K has been “singled out” for delimitation when Article 170 of the Constitution said that such an exercise for the entire country was due only in the year 2026. The petition argued that the Centre had usurped the jurisdiction of the Election Commission by notifying the delimitation of Jammu and Kashmir.
It highlighted how the Centre had first issued a notification on March 6, 2020 constituting the Commission led by Justice Desai to conduct the delimitation of the constituencies in J&K, Assam, Arunachal Pradesh, Manipur and Nagaland. However, it had issued a second notification on March 3, 2021 restricting the scope of delimitation to J&K alone.
The petition also alleged that the increase in the number of seats from 107 to 114 (including 24 seats in Pakistan Occupied Kashmir) in the Union Territory of Jammu & Kashmir was ultra vires both the Constitution and the Jammu & Kashmir Reorganisation Act, 2019.
It said any step to increase the number of seats in J&K would require a Constitutional Amendment besides changes in the Delimitation Act, 2002 and the Representation of People Act, 1950.
“When the last Delimitation Commission was set up on July 12, 2002, after the 2001 census, to carry out the exercise throughout the country, it had clearly stated that the total number of existing seats in the legislative assemblies of all States, including UTs of the National Capital Region and Pondicherry, fixed on the basis of the 1971 census, should remain unaltered till the census to be taken after the year 2026,” the petition argued.