Supreme Court dismisses petition challenging validity of delimitation exercise in Jammu and Kashmir

Tribune News Service

Satya Prakash 

New Delhi, February 13 

The Supreme Court on Monday dismissed a petition challenging notifications for delimitation of assembly constituencies in the newly created Union Territory of Jammu and Kashmir, saying “there is absolutely no merit in any of the contentions raised by the petitioners.”

A Bench of Justice SK Kaul and Justice AS Oka, however, clarified that it has not ruled on the validity of the Jammu & Kashmir Reorganisation Act, 2019 which is pending before another Bench of the top court examining the petitions challenging abrogation of Article 370 of the Constitution.

“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. Therefore, 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,” said the Bench which had reserved its verdict on December 1.

The verdict came on a petition filed by Srinagar residents Haji Abdul Gani Khan and Mohammad Ayub Mattoo against the delimitation exercise in Jammu and Kashmir. They had questioned the increase in the number of seats from 83 to 90 (excluding 24 seats in Pakistan Occupied Kashmir) in the Union Territory of Jammu and Kashmir recommended by the Delimitation Commission headed by former Supreme Court judge Ranjana Prakash Desai.

The petitioners had contended it went against Articles 81, 82, 170, 330 and 332 of the Constitution and statutory provisions, particularly Section 63 of the Jammu & Kashmir Reorganization Act, 2019. The number of seats in the assembly could not have been increased.

However, the Centre had defended the delimitation exercise in Jammu and Kashmir, saying the delimitation commission set up to redraw the Legislative Assembly and Lok Sabha constituencies in newly formed union territory was empowered to do so. The Jammu and Kashmir Reorganisation Act, 2019 didn’t preclude the establishment of Delimitation Commission by the Centre, Solicitor General Tushar Mehta had told the Bench.

The Centre maintained that the delimitation exercise has become final and it can’t be challenged in courts.  He rejected the petitioners’ contention that only the Election Commission was empowered to conduct the delimitation exercise under the Jammu and Kashmir Reorganization Act, 2019, saying “Section 61 and Section 62 of the 2019 Act do not preclude the establishment of Delimitation Commission by the Central Government u/S 62 of the 2019 Act.”

The Election Commission also said the delimitation exercise has attained finality after the publication of the Delimitation Orders in Gazette Notifications on May 5, 2022 in terms of the Delimitation Act.

Rejecting the petition, the top court said, “The petitioners have overlooked the fact that clause (b) of sub- Section (1) of Section 62 of the J&K Reorganisation Act has further amended the Delimitation Act, 2002 by providing that words and figures ‘census held in the year 2001’ appearing in the Delimitation Act shall be construed as ‘census held in the year 2011’.

“To its application to the Union territory of J & K, the year 2001 in sub-section (1) of Section 9 of the Delimitation Act, 2002 has been substituted by the year 2011 and therefore, distribution of seats in the House of the People and seats assigned to the Legislative Assembly will have to be readjusted on the basis of 2011 census and the delimitation will have to be carried out on the basis of the figures of the census held in the year 2011,” it said.

“The effect of Section 63 is that once the exercise of readjustment/delimitation is made on the basis of 2011 census figures, the same will be frozen till the relevant figures of the first census taken after 2026 are available. Therefore, the exercise of delimitation/readjustment of the seats in the Union Territory of J & K was required to be made by the Delimitation Commission on the basis of the figures of the 2011 census. In view of Section 63, further readjustment can be carried out only after the publication of figures from the census held after the year 2026,” the top court said.

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