SC upholds the constitution of the J&K Delimitation Commission, extension of tenure of its chairperson

After multiple objections and extensions, the J&K Delimitation Commission submitted its final report on May 5, 2022

Updated - February 13, 2023 09:52 pm IST

Published - February 13, 2023 12:04 pm IST - NEW DELHI

A view of the Supreme Court of India in New Delhi. File

A view of the Supreme Court of India in New Delhi. File | Photo Credit: Sushil Kumar Verma

The Supreme Court on Monday dismissed a challenge to the constitution of the Jammu and Kashmir Delimitation Commission to readjust constituencies in the new Union Territory.

“Articles 2 and 3 of the Constitution enable the Parliament to create new States and Union territories. Accordingly, the two new Union territories have been created. The J&K Reorganisation Act which created the two new Union territories assigns the role of readjustment of constituencies to the Delimitation Commission under the Delimitation Act, 2002… a law made under Article 3 can always provide for readjustment of the Constituencies in the newly constituted States or Union territories through the Delimitation Commission. Hence, we hold that there is no illegality associated with the establishment of the Delimitation Commission under the order of March 6, 2020,” a Bench of Justices Sanjay Kishan Kaul and AS Oka held.

The petition filed by Srinagar residents, Haji Abdul Gani Khan and Dr. Mohammad Ayub Mattoo, represented by senior advocate Ravi Shankar Jandhyala and advocates Sriram Parakkat and M.S. Vishnu Shankar, 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.

Also Read | The Jammu and Kashmir Delimitation report

“Once the Delimitation Commission was established, there is nothing wrong if the central government extended the period of appointment of the Chairperson till the task of delimitation/readjustment was completed,” Justice Oka, who authored the judgment, concluded.

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

The court questioned 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 had argued that only the Election Commission of India, under Section 60 of the 2019 Act, was empowered to conduct the delimitation exercise. They had further argued before the Bench that Article 170 of the Constitution barred delimitation exercise on the basis of the 2011 census. It has to either happen on the basis of the 2001 census or await “the first census after the year 2026”.

The plea had said that if August 5, 2019 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 had 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 Election Commission, Section 62(2) and 62(3) conferred powers to carry out delimitation on the Delimitation Commission.

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

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

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