The Supreme Court, on February 13, 2023, dismissed the petition challenging the delimitation exercise conducted for the Union Territory of Jammu & Kashmir’s (J&K) Legislative Assembly and Lok Sabha constituencies.
The petitioners, Haji Abdul Gani Khan and Dr Mohammad Ayub Mattoo, challenged the increase in the number of seats from 107 to 114 in J&K’s Legislative Assembly and argued that the same was ultra vires of Article 81, 82, 170 and 332 of the Constitution of India and Section 63 of the Jammu and Kashmir Reorganisation Act, 2019. [Case Name: Haji Abdul Gani Khan and anr. v. Union of India and ors [WP(C) No. 237/2022]
The bench comprising of Justices Sanjay Kishan Kaul and AS Oka, while dismissing the petition challenging the delimitation exercise, also clarified that this petition’s dismissal does not construe a ruling on the validity of the Jammu and Kashmir Reorganisation Act, 2019, which challenges the abrogation of Article 370 of the Constitution, as the same is pending before the Supreme Court’s Constitutional Bench. The bench stated, “We have dismissed the petitions. We have given the rider that the issue of the Reorganisation Act is pending before this Court, and we have not said anything on the merits of the same.”
The senior advocate, Ravi Shankar Jandhyala, appearing on behalf of the petitioners, contended that the delimitation exercise is violative of Article 170(3) of the Indian Constitution, which had frozen delimitation until the results of the first census conducted after 2026 are published. The Senior Advocate also argued that all delimitation exercises, post-2008, can only be conducted by the Election Commission and not a Delimitation Commission citing the Parliamentary and Assembly Constituencies Delimitation Order, 2008.
The Solicitor General (SG), Tushar Mehta, cited Section 62(2) of the Reorganisation Act 2019 to argue that the legislature intended the first delimitation exercise in the UT of J&K to be undertaken through a Delimitation Commission instead of the Election Commission. The SG submitted that the Reorganisation Acts had been used in the past to increase the number of MLAs in assemblies. The SG contended that the first delimitation exercise was conducted through the Delimitation Commission to take care of temporary exigencies and peculiar circumstances and stated that the ECI could conduct the following delimitation exercises.
The petitioners also contended that the UT of J&K has been singled out, as the States of Assam, Arunachal Pradesh, Manipur and Nagaland were taken out of the purview of delimitation notification on March 3 ,2021, and that the same was violative of Article 14 of Constitution of India. The SG has argued that the four North-Eastern states were removed from the commission’s purview due to ongoing internal disturbances.
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