New Delhi, Nov 9: The Supreme Court Tuesday upheld the freeze imposed by Jammu and Kashmir government on delimitation of assembly constituencies in the state till 2026 and dismissed the plea that it violated the "basic structure" of the Constitution.
Rejecting J&K Panther's Party chief Bhim Singh's argument that it deprived Scheduled Castes and Scheduled Tribes the right to represent the Valley, the apex court in a judgement said courts cannot interfere in matters of delimitation as there was an express Constitutional bar on such interference.
By an amendment to Jammu and Kashmir Representation of the People Act 1957 and Section 47(3) of the Constitution of J&K made in 2002, the state decided to freeze the delimitation exercise till 2026. The last census operation in the state was completed in 2001 but the delimitation was done in 1995.
The state High Court had upheld the validity of the amendment, following which the party appealed in the apex court.
The main plea of the petitioner was that the freeze would result in strong imbalances without the demographical changes being properly reflected and the essence of democracy will be defeated.
Singh said that of the 37 constituencies in Jammu, some are reserved for Scheduled Castes and Scheduled Tribes whereas of the 46 constituencies in Kashmir Valley, not a single constituency is reserved for SCs and STs. Dismissing the plea, a Bench of Justices G S Singhvi and Asok Kumar Ganguly said; "we are of the opinion that a right to caste vote is a valuable right but to demand any uniform value of one's voting right through the process of delimitation, disregarding the statutory and constitutional dispensation based on historical reasons is not a justiciable right."
"In the context of this question, we must keep in mind the constitutional scheme in Part XV relating to election. Article 327 of the Constitution empowers Parliament to make a law relating to delimitation of constituencies. The mandate of Article 329A is that any law relating to the delimitation of constituencies or the allotment of seats to such constituencies shall not be called in question in any court. Identical provisions have been made in Section 142 of the Constitution of J & K. Section 142(a)," the bench observed.
The apex court also rejected the plea that the amendment violated the basic structure of the Constitution.
"The other aspect of the question is that the amendment to Section 47(3) of the Constitution of J&K violates basic structure of the Constitution. This challenge is also not based on a sound principle. We must have a clear perception of what the basic structure is. It is hazardous to define what is the basic structure of the Constitution as what is basic does not remain static for all time to come," Justice Ganguly writing the judgement said.
The state was represented by M I Qadri Advocate General along with Gaurov Pachananda Senior Additional Advocate General Supreme Court and Sunil Fernednes Advocate-on-Record and Gopal Subramaniam Solicitor General of India.
Jammu and Kashmir has 87 constituencies. Out of that, 46 are in Kashmir Valley, 37 in Jammu and 4 are in Ladakh region.
Under Section 47(1) of the Constitution of J&K, it is provided that the legislative assembly shall consist of 111 members chosen by direct election from territorial constituencies of the state.
However, it is provided in Section 48 of the Constitution that until the area of the state which is under the Pakistan administration ceases to be so and the people residing in that area elect their representatives those 24 seats in the assembly shall remain vacant for Pakistan- administered Kashmir and will not be taken into account for counting the total membership of the assembly.
The area would be excluded in delimiting the territorial constituencies of the state.