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Judgment Reserved: Here is why Jammu & Kashmir Delimitation is challenged in Supreme Court

Supreme Court of India-TheDispatch
Supreme Court of India-TheDispatch

Jammu: The Supreme Court on Thursday reserved its verdict on a plea challenging the government’s decision to constitute a delimitation commission for redrawing the Legislative Assembly and Lok Sabha constituencies in Jammu and Kashmir on grounds that it violated constitutional provisions.

A bench of Justices S K Kaul and Abhay S Oka heard the submissions from Solicitor General Tushar Mehta, counsel for the Election Commission and the lawyer of the petitioners.

“Arguments heard. Judgement reserved,” the bench said.

The counsel appearing for the two petitioners, Haji Abdul Gani Khan and Mohammad Ayub Mattoo, had argued 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.

The plea had sought declaration that the 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.

It had said 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.

Why was Delimitation challenged?

According to the petitioners, Haji Abdul Gani Khan and Mohammad Ayub Mattoo, the impugned Delimitation notification, which directed the process of delimitation to be carried out in UT of J&K to be done on the basis of the 2011 population census, is unconstitutional as no population census operation was carried out in 2011 for UT of J&K.
The plea also challenged the increase in number of seats from 107 to 114 in the UT of Jammu and Kashmir to be ultra vires Articles 81, 82, 170, 330 and 332 of the Constitution and Section 63 of the Jammu and Kashmir Reorganisation Act, 2019. It is emphasised that the change not being proportionate with the respective population is also violative of Section 39 of the UT Act.

Government’s stand

The Ministry of Home Affairs, on behalf of the Union of India and the Union Territory of Jammu and Kashmir had filed a response along with the Election Commission of India before the Supreme Court in the first week of October, opposing the pleas challenging the formation of the Delimitation Commission.
Broadly, the counter relied on the following grounds to oppose the petition:
• Delimitation orders once gazetted cannot be changed,
• No contradictions in the provisions of J&K Re-Organization Act 2019,
• Not violative of Article 170 of the Constitution
The Union stated that Section 10(2) of the Delimitation Act, 2002 bars the challenge to the orders of the Delimitation Commission once they are published in the Gazette of India.
The counter-affidavit stated that the principle was also upheld in the matter of Meghraj Kothari vs Delimitation Commission. Thus, if the prayers of the petitioners are allowed, then the orders of the Delimitation Commission which had attained finality when they were published in the Gazette of India would be rendered infructuous. The counter of the Union also stated that it would be violative of Article 329 of the Constitution.
The Counter filed by the Union also stated that the Election Commission had stated that representations made by the Petitioners are completely misplaced and have been arrived at without a clear and comprehensive understanding of the Jammu and Kashmir Reorganisation Act 2019.

Also Read.. Constitution of Delimitation Commission challenged, matter presently sub-judice: GoI


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