New DelhiThe Supreme Court on Monday said there was nothing “illegal” about the delimitation exercise carried out by the Center to redraw Assembly and Lok Sabha constituencies in the Union Territory of Jammu and Kashmir.
A bench of Justices Sanjay Kishan Kaul and AS Oka dismissed a petition filed by two residents of Srinagar, who questioned the March 6, 2020 notification appointing a Delimitation Commission in Jammu and Kashmir to be exercised. Since then the process of delimitation is going on Completed,
The SC rejected all the three main arguments raised by the petitioners challenging the notification, besides observing that the petition was a belated attempt to invalidate the delimitation exercise. The court noted that the petition was filed more than two years after the Delimitation Commission was notified, for which the petitioner could not provide a valid explanation. Further, by the time the petition was filed a draft order had been published by the Commission on March 14, 2022.
Another discrepancy noted by the court was that the petition had challenged the delimitation exercise without challenging the 2019 presidential order that bifurcated the erstwhile state into two union territories or the Jammu and Kashmir Reorganization Act , which allowed the operation of the Delimitation Act, 2002 in Jammu and Kashmir. Increase in legislative seats from 107 to 114. Of the 114 seats, 24 which fall in Pakistan-occupied territory are to be considered vacant. This was the first time that the Delimitation Act, 2002 was applied to Jammu and Kashmir.
In the absence of challenges to the Presidential Order of 2019 and the J&K Reorganization Act, the court proceeded on the assumption that both are valid. Therefore, the court also clarified that its ruling on the legality of the delimitation exercise should not be construed as granting “(official license)” to the two exercises. It further said that the issue of legality of exercise of the said powers is the subject matter of pending petitions before the apex court.
The delimitation exercise was notified months after the Center invoked the Jammu and Kashmir Reorganization Act in October 2019, following a presidential order abrogating Article 370 that gave special status to the erstwhile state of Jammu and Kashmir . The Act provided for reorganization by bifurcating the state into two Union Territories – Jammu and Kashmir and Ladakh. Article 239A was invoked to apply the Indian Constitution to the J&K UT. This article empowers the Parliament to make a law to constitute a legislature for the Union Territory.
The Delimitation Act, 2002, which was not applicable to the erstwhile State of Jammu and Kashmir, was made applicable to the newly formed Union Territory of Jammu and Kashmir by virtue of Section 62 of the Jammu and Kashmir Reorganization Act.
On 6 March 2020, the Central Government constituted the Delimitation Commission under Section 3 of the Delimitation Act, 2002 for the purpose of delimitation of assembly and parliamentary constituencies in the Union Territory of Jammu and Kashmir as well as in the states of Arunachal Pradesh, Assam. Manipur and Nagaland. Headed by former SC judge, Justice Ranjana Prakash Desai, the commission included the Election Commissioner and state election commissioners as its ex-officio members.
Initially, the term of appointment of the Chairman was fixed at one year. But by a notification dated 3 March 2021, the earlier notification was amended by removing the states of Arunachal Pradesh, Assam, Manipur and Nagaland from the purview of the Delimitation Commission. By this notification, the term of the Speaker was extended for two years. Another amendment was made on 21 February 2022, in which it was provided that the term of the Speaker would be two years and two months. The delimitation exercise was aimed at redrawing constituencies in terms of sub-section (1) of section 60 of the Jammu and Kashmir Reorganization Act, which increased the legislative seats in Jammu and Kashmir from 107 to 114.
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Arguments of the petitioners
There are three main arguments advanced by the petitioners to challenge this exercise. He questioned the increase in the number of seats, claiming that it was in violation of the second proviso to clause (3) of Article 170, which says that it shall not be necessary to do so until the first census data after 2026 is published. . To readjust the total number of seats in the Legislative Assembly.
The petitioners further argued that the Election Commission and not the Delimitation Commission had the authority to conduct the re-drawing exercise. Lastly, the petitioners question the amendment in the notification, which has left out the North-Eastern states from the delimitation exercise.
To substantiate their arguments, the petitioners drew the attention of the Court to a question that was asked in the Lok Sabha regarding the delimitation of constituencies in the Union Territory of Jammu and Kashmir as well as in the State of Telangana. In response to this question, Minister of State for Home Nityanand Rai gave information Said The total number of seats in the Legislative Assembly of each state will be readjusted after the first census is published after the year 2026.
The government justified its decision to set up the Delimitation Commission and questioned the belated approach of the petitioners. It relied on the provisions of the Jammu and Kashmir Reorganization Act to defend the move. On the exclusion of four northeastern states from the delimitation exercise, the government cited pending litigation in courts regarding the delimitation exercise.
Before examining the challenge on merits, the court in its judgment highlighted the petitioners’ decision not to question the validity of the J&K Reorganization Act. Although the counsel for the petitioners had attempted to raise this during the submissions, the court noted that no such submissions had been made in the petition. But the lawyer tried to influence the court by claiming that the challenge to the law lies in the petition.
However, the court rejected this contention and said: “There can be no doubt that when a party seeks to challenge the constitutional validity of a statute, it must argue in detail the grounds on which the statute sought to challenge the validity of the
It states: “In the absence of specific pleadings to that effect, the Court cannot go into the issue of validity of statutory provisions. Constitutional Courts cannot interfere with a law made by a legislature unless the petition specifically states the challenge”. It is not specifically challenged by including the grounds. The reason being that there is always a presumption of constitutionality of laws.”
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The court further held that a constitutional court “cannot casually interfere with a law made by a competent legislature, merely inferring from the pleadings that the challenge to validity lies”. “The State gets a reasonable opportunity of defending the law only when the State is informed of the grounds on which the law is sought to be challenged,” it said.
It then examined the constitutional scheme to disprove the petitioners’ contention that the delimitation exercise was violative of Article 170. It said that the Legislatures of the Union Territories are governed by the law made by the Parliament as per Article 239A. On a conjoint reading of the relevant provisions of the Constitution, the court held that the Parliament can make a law to convert an existing State into one or more Union Territories.
It is empowered by law to form a body of legislature for the union territories of Puducherry and Jammu and Kashmir. Accordingly, the Jammu and Kashmir Reorganization Act provides that there shall be a Legislative Assembly for the Union Territory of Jammu and Kashmir. It was passed under Article 4 of the Constitution which allows the Parliament to include such provision as representation in the Parliament and the State Legislature. The court noted that such a law could always provide for readjustment of constituencies in the newly formed UT through a delimitation exercise.
As for conducting the exercise through the Delimitation Commission, the court noted that by virtue of a provision in the J&K Reorganization Act, the Delimitation Act of 2002 was made applicable to J&K with effect from October 31, 2019. “Therefore, there is no illegality attached to the delimitation/re-adjustment of parliamentary constituencies of the Union Territory of Jammu and Kashmir carried out by the Delimitation Commission.
The court clarified that the Jammu and Kashmir Reorganization Act further amended the Delimitation Act, 2002 to treat the words and figures “census conducted in the year 2001” in the Delimitation Act as “census conducted in the year 2011”.
Therefore, by virtue of the Jammu and Kashmir Reorganization Act, not only the provisions of the Delimitation Act, 2002 were made applicable to the Union Territory of Jammu and Kashmir, but also an obligatory duty of readjustment of constituencies of both the Legislative Assembly and Parliament in the Union Territory was assigned. to the Delimitation Commission by sub-sections (2) and (3) of section 62.
Till October 31, 2019, the Delimitation Commission for the State/Union Territory of Jammu and Kashmir could not be set up under the Delimitation Act, 2002, as the said Act had not been made applicable to the State of Jammu and Kashmir till then, the court underlined. Did.
Once the Delimitation Commission is set up, there was nothing wrong on the part of the Center to extend the term of appointment of the Chairperson till the delimitation/re-adjustment work is completed, the court further said.
On the exclusion of the northeastern states from the purview of the delimitation exercise, the court observed the position and status of the newly created UT of Jammu and Kashmir under the Constitution is entirely different from the four northeastern states.
“In its applicability to the Union Territory of Jammu and Kashmir, sections 4 and 9 of the Delimitation Act, 2002 have been amended by requiring re-adjustment to be made on the basis of 2011 Census data. North Eastern States In the matter, there is no such amendment. Therefore, two disparate cannot be treated as equal. Therefore, the contention based on violation of constitutional provisions including Article 14 must be rejected,” it said, as it denied the petitioners Blamed for relying on the reply given by the Union Minister of State for Home Affairs in the Lok Sabha.
The said question, the court held, dealt with the delimitation of constituencies in Telangana in terms of Article 170 and not that of the Union Territory.
(Edited by Poulomi Banerjee)
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