SC Refuses to Stay J&K Delimitation Report, Tells Centre, EC to File Response on Plea

The petition asked why the Union Territory of J&K has been "singled out" when Article 170 of the constitution provides that the next delimitation in the country will be taken up after 2026.

New Delhi: The Supreme Court on Friday, May 14, declined to stay the tabling of the final draft report of the Jammu and Kashmir Delimitation Commission in parliament.

According to the Hindu, it did not accept an oral plea made by the petitioners, Haji Abdul Gani Khan and Mohammad Ayub Mattoo, and asked them, “Can we restrain them from tabling it in the parliament? If that is so, why did you take two years to challenge the delimitation notification?”

The top court sought a response from the Union government, Jammu and Kashmir administration, and the Election Commission of India (ECI) on the petitioners’ plea challenging the government’s decision to constitute a delimitation commission for redrawing assembly and Lok Sabha constituencies in the Union Territory.

A bench of Justices Sanjay Kishan Kaul and M.M. Sundresh asked them to file a fresh affidavit responding to the petitioners’ challenge to the delimitation exercise within six weeks, and gave the petitioners two weeks to submit their rejoinder.

The petitioners were represented by senior advocate Ravi Shankar Jandhyala and advocates Sriram Parakkat and M.S. Vishnu Shankar.

“Are you challenging the report or the formation of the Commission…? You have come after the report has been filed,” Justice Kaul asked senior advocate Jandhyala, the Hindu reported.

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The petition asked why the Union Territory of Jammu and Kashmir has been “singled out” when Article 170 of the constitution provides that the next delimitation in the country will be taken up after 2026. It further argued that the Union government had usurped the jurisdiction of the Election Commission by notifying the delimitation of Jammu and Kashmir.

It sought to declare that the Union government issued a notification dated March 6, 2020, constituting the delimitation commission to take up delimitation in the Union Territory of J&K and states of Assam, Arunachal Pradesh, Manipur, and Nagaland. However, on March 3, 2021, it omitted Assam, Arunachal Pradesh, Manipur and Nagaland from the process of delimitation, therefore conducting delimitation only for Union Territory of Jammu and Kashmir. The petition said this move is “unconstitutional” as it amounts to classification and violates Article 14.

As per the report, the petition also alleged that the increase in the number of seats from 107 to 114 (including 24 seats in Pakistan Occupied Kashmir) in the Union Territory of Jammu and Kashmir was ultra vires both the Constitution and the Jammu & Kashmir Reorganisation Act, 2019.

It said any step to increase the number of seats in J&K would require a constitutional amendment besides changes in the Delimitation Act, 2002 and the Representation of People Act, 1950.

“When the last Delimitation Commission was set up on July 12, 2002, after the 2001 census, to carry out the exercise throughout the country, it had clearly stated that the total number of existing seats in the legislative assemblies of all states, including UTs of the National Capital Region and Pondicherry, fixed on the basis of the 1971 census, should remain unaltered till the census to be taken after the year 2026,” the petition argued.

Solicitor General Tushar Mehta said that effectively the plea is two-fold and that delimitation can be conducted only by the ECI and not the delimitation commission. Secondly, he added the petitioners have raised questions about the census.

The answer to the questions is in the reorganisation Act. There are two types of delimitations: one is geography, which is conducted by the delimitation commission, and the second is by Election Commission with regard to reservation of seats, he said.

Mehta said that the petitioners’ case is that once Article 370 is gone, the census will only take place in 2026.

The bench then noted that the petitioners have not challenged the reading down of Article 370 of the Constitution, and therefore, pleadings concerning Article 370 are to be ignored.

The top court said that the challenge is about the delimitation pursuant to the notifications of March 6, 2020, and March 3, 2021, and directed the Union government and the ECI to file their replies.

The case will be next heard on August 30.

(With inputs from PTI)