New Delhi: The Supreme Court Monday dismissed a plea challenging the delimitation of the constituencies in Jammu and Kashmir.
However, the court made it clear that while deciding the delimitation case no opinion was expressed by it on the validity of the Jammu and Kashmir Re-organisation Act, 2019, which was pending before the Supreme Court in connection with petitions against the abrogation of Article 370 of the constitution.
“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,” a division bench of Justices S K Kaul and A S Oka said. “Therefore, we have not dealt with the issue of validity.”
It said: “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.”
The apex court delivered the judgment in a petition filed by two Srinagar residents, Abdul Gani Khan and Muhammad Ayub Mattoo, challenging the increase in the number of seats from 107 to 114 in J&K.
The petitioners had argued that it was ultra vires Articles 81, 82, 170, 330 and 332 of the Indian constitution and Section 63 of the J&K Reorganisation Act, 2019.
Following the abrogation of Article 370 in August 2019 dividing the erstwhile State of Jammu and Kashmir into two union territories, the Delimitation Commission was appointed to redraw the assembly constituencies of J&K.
The commission submitted its report recommending 90 assembly constituencies in J&K Union Territory (UT).
In response to the argument that the provision made for 114 seats in the legislature of the newly-constituted J&K UT was illegal, the court said: “This submission calls for no consideration as there is no challenge to the validity of sub-section (1) of Section 60 of the J&K Reorganisation Act.”
Rejecting the argument that Delimitation Order of 2008 published by the Election Commission could not be deviated from, the court said: “The perusal of the said order shows that it reproduces the delimitation of the Parliamentary and Legislative Assembly constituencies made by the delimitation of Parliamentary and assembly constituencies Orders of 1976 and 1995 for the State of Jammu and Kashmir.”
The court said that both the J&K Reorganisation Act by virtue of Sections 11(4) had expressly modified the orders of 1976 and 1995 and 14(5) as provided in the 2nd and 3rd Schedules thereto.
“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,” the court said. “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 that the effect of Section 63 was that once the exercise of readjustment and delimitation is made on the basis of 2011 census figures, the same would be frozen till the relevant figures of the first census taken after 2026 are available.
“Therefore, the exercise of delimitation and 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,” the court said.
It pointed out that in view of Section 63, further readjustment could be carried out only after the publication of figures from the census held after the year 2026.
With regard to the submission by senior counsel appearing for the petitioners that the exercise which was undertaken for the newly-created J&K UT was not undertaken on the basis of the Uttar Pradesh Reorganisation Act, 2000 and Andhra Pradesh Reorganisation Act, 2014, the court said: “ In both the Acts, there is no provision which is pari materia with clause (b) of sub- Section (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.”
The court dismissed the petition saying, “Thus, there is absolutely no merit in any of the contentions raised by the petitioners.”
The petitioners had contended that the delimitation exercise was carried out in contravention of the scheme of the constitution and alteration of boundaries and inclusion of extended areas should not have been done.
“Increase in the number of seats from 107 to 114 (including 24 seats in Pakistan occupied Kashmir) in Jammu and Kashmir is ultra vires constitutional provisions and statutory provisions, particularly under section 63 of the Jammu and Kashmir Reorganisation Act, 2019,” they said.
They contended that the last delimitation commission was set up on July 12, 2002, in exercise of powers conferred by Section 3 of the Delimitation Act, 2002 after the 2001 census to carry out the exercise throughout the country.