A petition has been filed in the Supreme Court challenging the notifications issued by the Union Government for the Delimitation of Assembly Constituencies for the Union Territory of Jammu and Kashmir.
The petition filed by Haji Abdul Gani Khan and Dr Mohammad Ayub Mattoo, residents of Jammu and Kashmir, also seeks a declaration that the increase of seats from 83 to 90 i.e., (107 to 114 including 24 seats in Pakistan Occupied Kashmir) in Union Territory of Jammu & Kashmir by the Union is ultra vires constitutional provisions such as Articles 81, 82, 170, 330 and 332 and Statutory Provisions particularly Section 63 of the Jammu & Kashmir Reorganisation Act 2019.
The Union Government, Ministry of Law and Justice (Legislative Dept) issued a notification on March 6, 2020, in exercise of power under Section 3 of the Delimitation Act, 2002, constituting a Delimitation Commission, with Justice (Retd) Ranjana Prakash Desai as Chairperson, for the purpose of delimitation of Assembly and Parliamentary constituencies in Jammu and Kashmir, Assam, Arunachal Pradesh, Manipur and Nagaland, for a period of one year.
On 03.03.2021 , another notification was issued by the Union of India, whereby the notification dated 06.03.2020 was amended. The term of the delimitation commission was extended by ”one more year” and this time ”its scope was limited only to the UT of J&K”.
According to the petition, the import of the wordings of Section 9 (1)(b) of the Representation of Peoples Act, 1950 and Section 11 (1)(b) of the Delimitation Act 2002, makes it clear that the power of the Election Commission as envisaged by the sections extended to merely update the Delimitation Order by making the necessary changes on account of subsequent events to correct the description in the Delimitation Order which has become inappropriate and therefore this power cannot extend to alteration of the boundaries or area or extent of any constituency as shown in the Delimitation Order.
“According to election laws, it is only the Election Commission that must carry out the process of delimitation (necessary updation) after the Parliamentary and Assembly Constituencies Delimitation Order, 2008 is notified. Nobody is competent to carry out the delimitation process since the delimitation has been completed and the Delimitation Commission itself has become inappropriate”
-said the Petition.
It is submitted that the Union was responsible for maintaining, sustaining and working of the statutory constitutional provisions of both the Constitution of the State of Jammu and Kashmir and the Constitution of India, and their mutual independence and interplay prior to the abrogation of Article 370 on August 5, 2019 and stripping of the Special Status accorded to the State of Jammu and Kashmir, which rendered the Constitution of Jammu and Kashmir and all enactments under it infructuous.
It is further submitted in the petition that conducting delimitation only for Union Territory of Jammu & Kashmir is unconstitutional as it amounts to further classification as held in Subramanian Swamy case …..”The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well-established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure
Grounds mentioned in the Petition:-
- The State of Jammu and Kashmir is bifurcated into two Union Territories (UTs), namely, UT of Jammu and Kashmir, with an Assembly and UT of Ladakh without an Assembly.
A. With 24 seats left vacant for the Pakistan Occupied Kashmir (PoK) area, the strength of the Jammu and Kashmir Assembly was 87 with 4 Assembly seats from Ladakh. The effective strength of the UT of Jammu and Kashmir is, therefore, 83.
-There is a Provision to increase the number of seats by 7, i.e., from 107 to 114, which means that leaving out 24 seats for the PoK area, effective numbers for the UT of Jammu and Kashmir are from 83 to 90. There is a special provision as to readjustment of Parliamentary and Assembly Constituencies on the basis of the 2011 census.
-Section 60 (1) clearly states that the delimitation of constituencies to increase the number of seats from 107 to 114 may be determined by the Election Commission.
-While Section 60 (1) (a), (b), and (c), 60 (2), 60 (3) (4), (5) and (6), Section 61 (1) (a) and (b) and 61 (2) also defines the role of the Election Commission to carry out this process, Section 62 is totally contradictory to what Sections 60 and 61 have stated about the role of the Election Commission in the process of delimitation of constituencies to increase the number by 7 seats.
-The Constitution (Eighty-fourth Amendment) Act, 2001–This Act, inter alia, extended the ban on the readjustment of seats in the LokSabha and the state legislative assemblies for another 25 years (i.e., up to 2026) with the same objective of encouraging population limiting measures. In other words, the number of seats in the LokSabha and the assemblies are to remain the same till 2026. It also provided for the readjustment and rationalization of territorial constituencies in the states on the basis of the population figures of 1991 census.
-That Section 3 of the Delimitation Act, 2002 contemplated the appointment of a Delimitation Commission “as soon as may be after the commencement of this Act”. The constitution of a Delimitation Commission in 2020 can by no means be seen as justifiable or tenable or in tune with what was contemplated by “in exercise of power under section 3 of the Delimitation Act, 2002”.
-Delimitation Commissions were set up in 1953, 1963, 1973 and 2002, when this exercise was undertaken for the delimitation of assembly and parliamentary constituencies in the whole country. Any delimitation exercise after the winding up of the Delimitation Commission must be undertaken by the Election Commission of India.
-While the Delimitation Commission has been mandated to undertake the delimitation process in J&K in accordance with the provisions of the J&K Reorganisation Act, 2019, to increase the number of seats from 83 to 90, Section 60 (1) is very explicit that the exercise must be carried out by the Election Commission. Hence any exercise by the Delimitation Commission is liable to be declared void by the courts.
-Assembly seats in J&K were delimited in 1963, 1973 and 1995. The last exercise was conducted by the Justice (retired) K K Gupta Commission when the state was under President’s Rule and was based on the 1981 census, which formed the basis of the state elections in 1996. There was no census in the state in 1991 and no Delimitation Commission was set up by the state government after the 2001 census as the J&K Assembly passed a law to freeze fresh delimitation of seats until 2026.
-Delimitation exercises in J&K in the past have been slightly different from those in the rest of the country because of the region’s Special Status — which was scrapped by the Centre in August 2019. Until then, delimitation of LokSabha seats in J&K was governed by the Constitution of India, but the delimitation of the state’s Assembly seats was governed by the Jammu and Kashmir Constitution and Jammu and Kashmir Representation of the People Act, 1957.
-Delimitation of Assembly seats in Jammu and Kashmir was last done in 1995. However, August 5, 2019 marked the end of the Special Status given to Kashmir, with the abrogation of Articles 370 and 35A. Along with this J&K Constitution all the other state Acts, enacted under its provisions, were rendered infructuous by an order signed by the President of India. With this the process of delimitation of assembly seats in J&K, along with the delimitation of Parliamentary seats, is governed by the Constitution of India.
-The delimitation process in J&K was frozen by the amendment to the Kashmir People Representation Act, 1957 the 29th Amendment of the Jammu and Kashmir Constitution in 2002,