Supreme Court Uphold the Delimitation of J&K

On this Monday, Supreme Court upheld the legality and validity of Delimitation of J&K in (Haji Abdul Gani Khan & Oth. Vs UIO & Oth. D.D. 13 Feb 2023) and held that  when a party wants to challenge the constitutional validity of a statute, they must plead in detail the grounds on which the validity of the statute is sought to be challenged. In the absence of specific pleadings to that effect, the court cannot go into the issue of the validity of statutory provisions.

The challenge in the writ petition under Article 32 of the Indian Constitution is to the legality and validity of the Delimitation Commission's constitution and exercise of delimitation in the Union Territory of Jammu and Kashmir.

The Constitution (Application to Jammu and Kashmir) Order, 2019 was issued on August 5, 2019, directing all provisions of the Indian Constitution, as amended from time to time, to apply in relation to the State of Jammu and Kashmir subject to modifications made to Article 367. On August 6, 2019, a declaration was made under Clause (3) of Article 370 of the Constitution, declaring all clauses of Article 370 to cease to be operative. The Jammu and Kashmir Reorganization Act, 2019 was enacted, dividing the State of Jammu and Kashmir into two Union Territories. The Delimitation Act, 2002 was made applicable to the newly formed Union Territory of J&K, and a Delimitation Commission was constituted on March 6, 2020, for delimitation of Assembly and Parliamentary Constituencies. Sub-Section (1) of Section 60 of the J&K Reorganization Act provides for an increase in the number of seats in the Legislative Assembly of Union Territory of J & K from 107 to 114.

The learned senior counsel argued that the delimitation of constituencies in the Union Territory of Jammu and Kashmir is illegal and violates various articles of the Constitution, including Article 170, 82, 330, and 332. The counsel contended that the government cannot undermine the objects and reasons of the Constitution, and the appointment of the Delimitation Commission is illegal. The counsel also argued that the delimitation order of 2008 published by the Election Commission cannot be deviated from, and the provisions of Section 62 of the J&K Reorganisation Act are violative of the Constitution. Furthermore, the counsel argues that a non-obstante clause in a statute cannot override the provisions of the Constitution.

The learned Solicitor General of India has submitted that the writ petition challenging the notification for the Delimitation Commission suffers from delay and latches, and that there is a complete bar on any court questioning the delimitation order passed by the Commission. He also argued that Sections 60 and 62 of the J&K Reorganisation Act operate in different fields, and that the Election Commission informed the Government that it was not necessary to undertake the exercise under Section 60 of the Delimitation Act. Additionally, he stated that Article 3 specifically empowers Parliament by law to form a new state/union territory and that Clauses (3) of Articles 81 and Article 170 do not apply to the Union territories.

The Supreme Court observed that when a party wants to challenge the constitutional validity of a statute, they must plead in detail the grounds on which the validity of the statute is sought to be challenged. In the absence of specific pleadings to that effect, the court cannot go into the issue of the validity of statutory provisions. The court cannot interfere with legislation made by a competent legislature only by drawing an inference from the pleadings that the challenge to the validity is implicit. As the petitioners did not specifically challenge the provisions of the J&K Reorganisation Act or the 2019 Presidential Order and declaration, the court proceeded on the footing that they are valid.

Suprems Court further observed that the Constitution distinguishes between States and Union Territories, with Part VI dealing with States and Part VIII dealing with Union Territories. Article 3 allows Parliament to form new States or alter existing States, including Union Territories.

Article 4 allows Parliament to make laws for this purpose, including provisions for representation in Parliament and the state legislature. Article 170, titled "Composition of the Legislative Assemblies," does not apply to Union Territories. Instead, Articles 239A and 239AA in Part VIII provide for the creation of a body to function as a legislature and Council of Ministers for certain Union Territories, including J&K. Parliament can create a body of legislature for Union Territories, and any law made for this purpose will not be considered an amendment of the Constitution for the purposes of Article 368.

The Supreme Court observed that the J&K Reorganisation Act was made by Parliament in the exercise of powers under Articles 3, 4, and 239A of the Constitution. The Act created two Union territories in place of the State of Jammu and Kashmir and provided for the amendment of the First and Fourth schedules to give effect to its provisions. The Court also noted that the provisions of Chapter III of Part VI of the Constitution, including Article 170 which deals with the State Legislature, do not apply to the Legislative Assemblies of Union Territories. Therefore, the argument that certain provisions of the J&K Reorganisation Act and actions taken thereunder are in conflict with Article 170 is misconceived and deserves to be rejected.

The Supreme Court observes that the Delimitation Commission Acts of 1962, 1972, and 2002 were not applicable to the State of Jammu and Kashmir as they excluded the state. The J&K Reorganisation Act requires the establishment of the Delimitation Commission, which is responsible for distributing seats in the Legislative Assembly and delimiting constituencies based on specific factors. The Delimitation of Assembly Constituencies Order, 1995, is issued, and the J&K RP Act allows the Election Commission to make amendments to it. Sub-section (5) of Section 14 of the J&K Reorganisation Act amends the Delimitation Order of 1995, and the Third Schedule provides details of the amendments to the delimitation of the assembly constituencies. The delimitation of 83 constituencies of the Legislative Assembly of the Union Territory of J & K is incorporated in the form of the Third Schedule.

The Supreme Court decided the issue of the legality of the appointment of the Delimitation Commission held that that the J&K Reorganisation Act allocates a total of 6 seats to the erstwhile State of Jammu and Kashmir with no reservation for Scheduled Castes and Schedule Tribes in the First Schedule to the RP Act of 1950. Section 10 of the J&K Reorganisation Act provides that out of the 6 seats allocated to the erstwhile State, 5 will be allocated to the Union Territory of J & K and one will be to the Union Territory of Ladakh. Section 11 amends the Delimitation of Parliamentary Constituencies Order, 1976, and delimits the five parliamentary constituencies of the Union Territory of J & K and one constituency of the Union Territory of Ladakh. The Election Commission can make adjustments in the boundaries and description of the extent of the Parliamentary Constituencies in each Union Territory according to Clause (c) of sub-section (1) of Section 60 of the J&K Reorganisation Act.

The Delimitation Commission is responsible for carrying out the readjustment of the constituencies as provided in Section 11 in the successor Union Territories into Parliamentary Constituencies, as stated in sub-section (3) of Section 62. There is no illegality associated with the delimitation/readjustment of Parliamentary constituencies of the Union Territory of J & K undertaken by the Delimitation Commission.

The Supreme Court upheld the legality of the appointment of the Delimitation Commission for the delimitation of Assembly and Parliamentary constituencies in the Union Territory of Jammu & Kashmir, by the Notification of 6th March 2020. The court clarified that the Delimitation Commission constituted by the impugned notification referred to the exercise of readjustment as provided in subsection (2) and (3) of Section 62 of the Delimitation Act, 2002, which is nothing, but the delimitation exercise contemplated by subsection (1) of Section 60 of the same Act. The court also rejected the petitioner's argument that the Delimitation Act, 2002 contemplates the constitution of only one Delimitation Commission and not more than one.

The Supreme Court upheld the exclusion of the states of Arunachal Pradesh, Assam, Manipur, and Nagaland from the purview of the Delimitation Commission constituted under the notification dated 6th March 2020. The Union of India argued that delimitation in these four states was deferred due to security reasons and pending court cases concerning discrepancies in census figures. Section 10A of the Delimitation Act, 2002 permits postponement of delimitation in certain contingencies. The position and status of J&K under the Constitution is different from the four North-Eastern States, and Sections 4 and 9 of the Delimitation Act, 2002 stand amended in its applicability to J&K. The court held that two unequal cannot be treated as equals, and thus, the argument based on violation of Constitutional provisions, including Article 14, was rejected.

Supreme Court rejected the challenge to the increase in the number of seats from 107 to 114 as it was not found violative of Articles 81, 82, 170, 330 and 332 of the Constitution of India, which do not deal with the Legislature of any Union territory. The petitioners failed to show how increasing the total number of seats in the legislature will offend Article 332, as long as the reservation is maintained as per the formula provided under Article 332.

The Supreme Court rejected the argument against the provision made for 114 seats in the legislature of the newly constituted Union Territory of J&K, as there was no challenge to the validity of sub-section (1) of Section 60 of the J&K Reorganisation Act.

The Supreme Court clarified that its findings were rendered 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, and that there was no merit in any of the contentions raised by the petitioners.

Petition Dismissed.

Haji Abdul Gani Khan & Oth.Vs UIO & Oth.