Supreme Court dismisses petition challenging proposed delimitation in Jammu and Kashmir

The Supreme Court on Monday dismissed the petition challenging the notifications for the delimitation of assembly constituencies in the Union Territory (UT) of Jammu and Kashmir (J&K) [Haji Abdul Gani Khan and Anr. v. Union of India and ors].A bench of Justices Sanjay Kishan Kaul and AS Oka also said that it has not ruled upon the validity of the Jammu & Kashmir Re-organisation Act, 2019, which is pending before the top court in the batch of petitions challenging abrogation of Article 370 of the Constitution. " ... there is absolutely no merit in any of the contentions raised by the petitioners. We may, however, clarify that the findings rendered in the judgment are on the footing that the exercise of power made in the year 2019 under clauses (1) and (3) of Article 370 of the Constitution is valid. 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," the Court said.The bench had on December 1 reserved judgment in the plea challenging the notifications for the delimitation of assembly constituencies in J&K, after hearing the counsel for two days. .The petition was filed by two Srinagar residents, Haji Abdul Gani Khan and Dr Mohammad Ayub Mattoo, challenging the increase in the number of seats from 107 to 114 in the UT claiming that the same was ultra vires Articles 81, 82, 170, 330 and 332 of the Indian Constitution and Section 63 of the Jammu & Kashmir Re-organisation Act, 2019.It was contended that the respondents had no power to establish a Delimitation Commission under Section 3 of the Delimitation Act since only the Election Commission could carry out the process of delimitation after the notification of the Parliamentary and Assembly Constituencies Delimitation Order, 2008.The plea also pointed out that Article 170 of the Constitution provides the next delimitation to be taken up after 2026, however, the Union Territory of J&K was singled out..Kashmir has always been a part of India: Supreme Court.Senior Advocate Ravi Shankar Jandhyala, appearing for the petitioners, had submitted that increasing the number of seats was in violation of the constitutional amendment which froze any delimitation exercises till 2026. He had also pointed out that four northeastern States were excluded from the exercise, which was a violation of Article 14 (right to equality before the law).Justice Oka had repeatedly posed the question as to why the present plea, filed under Article 32, had not challenged the validity of provisions of the Jammu & Kashmir Reorganisation Act that allows delimitation. Section 62(2) of the said Act provides for re-adjustment of constituencies in the Union Territory by a Delimitation Commission. Solicitor General (SG) Tushar Mehta, appearing for the respondents, had argued that Reorganisation Acts have been used in the past to increase the number of MLAs. The SG had argued that the legislative intent of the Reorganisation Act was to take care of temporary exigencies and peculiar circumstances, and that is why the commission conducted the first delimitation exercise, and the ECI can follow. .The top court in its judgment made it clear Article 170 is not applicable to the legislature of the Union Territory."The reason is that the Legislative Assemblies of the concerned Union Territories will be governed by the law made by the Parliament in accordance with Article 239A and not by the provisions of Chapter III of Part VI. As Article 170 is not applicable to the Legislature of the Union Territory of J & K, the main thrust of the argument that certain provisions of the J&K Reorganisation Act and actions taken thereunder are in conflict with Article 170 and in particular Clause (3) thereof is clearly misconceived and deserves to be rejected", the Court explained. Failure of the legislature to modify the time limit provided in sub-Section (6) of Section 10 of the 2002 Delimitation Act cannot be ground to hold that the Central government is powerless to appoint a Delimitation Commission for the UT of J&K, the Court.If that is done the provisions of Section 62 of the J&K Reorganisation Act will be rendered nugatory, the Court reasoned."A statute cannot be interpreted in a manner that will render some of its provisions otiose. A statute must be construed and interpreted in such a manner as to make it workable," the bench explained.On the exclusion of four north-eastern States (Assam, Arunachal Pradesh, Mizoram, Nagaland) from the 2020 delimitation notification, the top court observed that the two cannot be compared."In its applicability to the Union Territory of J & K, Sections 4 and 9 of the Delimitation Act, 2002 stand amended by requiring readjustment to be carried out on the basis of the census figures of 2011. In case of the North Eastern States, there is no such amendment. Therefore, two unequal cannot be treated as equals. Hence, the argument based on the violation of Constitutional provisions including Article 14 deserves to be rejected."Similarly, the manner in which delimitation exercises have since been carried out and implemented in Andhra Pradesh and Telangana, as well as Uttar Pradesh/Uttarakhand can also not be relied upon, it was held. "In both the Acts [UP and AP Reorganisation], there is no provision which is pari materia with clause (b) of subSection (1) of Section 62 of the J&K Reorganisation Act which amended the provisions of the Delimitation Act 2002 in its applicability to the newly formed Union Territories by substituting the year 2001 with 2011.".Besides Senior Counsel Jandhyala, advocates Sriram Parakkat and MS Vishnu Shankar represented the petitioners. SG Tushar Mehta and advocate Kanu Agrawal represented the respondents. [Read Judgment]