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SC order dismissing challenge to J&K delimitation — ‘presumption of constitutionality of laws’

Bench of justices Sanjay Kishan Kaul & A.S. Oka held Monday that there was nothing 'illegal' about delimitation exercise to redraw legislative assembly and Lok Sabha constituencies in J&K.

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New Delhi: There was nothing “illegal” about the delimitation exercise carried out by the Centre for redrawing the legislative assembly and Lok Sabha constituencies in the Union Territory of Jammu and Kashmir, the Supreme Court held Monday.

A bench of justices Sanjay Kishan Kaul and A.S. Oka dismissed a petition filed by two Srinagar-based residents who questioned the 6 March, 2020, notification to appoint a Delimitation Commission to carry out the exercise in J&K. The delimitation process has since been completed.

The SC rejected all three main arguments raised by the petitioners to challenge the notification, besides also observing that the petition was a belated attempt to seek invalidation of the delimitation exercise. The petition, the court noted, was filed more than two years after the Delimitation Commission was notified, for which the petitioners could not provide a valid explanation. Moreover, by the time the petition was filed a draft order by the Commission was published on 14 March, 2022.

Another anomaly noted by the court was that the petition assailed the delimitation exercise without challenging the Presidential order of 2019 that bifurcated the erstwhile state into two Union Territories or the J&K Reorganisation Act that allowed for the operation of the Delimitation Act, 2002 in J&K and the increase of legislative seats from 107 to 114. Of the 114 seats 24 that fall in the Pakistan-occupied territory have to be treated as vacant. This was the first time that the Delimitation Act, 2002 was made applicable to J&K.

In the absence of a challenge to the 2019 Presidential order and J&K Reorganisation Act, the court proceeded on the assumption that both are valid. Therefore, the court even clarified that its judgment on the legality of the delimitation exercise should not be construed as it giving its “imprimatur (official license)” to the two exercises. It further noted that the issue of the validity of the exercise of the said powers is a subject matter of petitions pending before the top court.

The Delimitation Exercise was notified months after the Centre enforced the J&K Reorganisation Act in October 2019 that followed the Presidential Order abrogating Article 370 that gave special status to the erstwhile state of Jammu and Kashmir. The Act provided for reorganisation of the state by dividing it into two Union Territories — J&K and Ladakh. Article 239A was invoked to make the Indian Constitution applicable to J&K UT. This Article confers power on the Parliament to enact a law for creating 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 by virtue of Section 62 of the J&K Reorganisation Act to the newly formed UT of J&K.

On 6th March 2020, the Central Government constituted a 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 J & K as well as the States of Arunachal Pradesh, Assam, Manipur and Nagaland. Headed by former SC judge, Justice Ranjana Prakash Desai, the Commission comprised The Election Commissioner and the State Election Commissioner as its ex-officio members.

Initially, the term of appointment of the Chairperson was fixed as one year. But by a notification of 3 March 2021, the earlier notification was amended by deleting the States of Arunachal Pradesh, Assam, Manipur and Nagaland from the purview of the Delimitation Commission. By the same notification, the term of the Chairperson was extended to two years. Another amendment was made on 21 February 2022 by providing that the term of the Chairperson shall be for two years and two months. The purpose of the Delimitation Exercise was to redraw constituencies in terms of sub-Section (1) of Section 60 of the J&K Reorganisation Act that increased legislative seats in J&K from 107 to 114.


Also read: In Kashmir 3 years on, 3 positive changes, 3 things that should’ve happened & 3 that got worse


The petitioners’ arguments

Three main arguments were raised by the petitioners to challenge the exercise. They questioned the increase in the number of seats, claiming it was in violation of the second proviso to clause (3) of Article 170, which says that until the figures for the first Census taken after 2026 have been published, it shall not be necessary to readjust the total number of seats in the legislative assembly.

The petitioners further contended that the Election Commission and not the Delimitation Commission was empowered to undertake the redrawing exercise. Finally, the petitioners questioned the amendment in the notification that excluded the North-East states from the delimitation exercise.

To buttress their arguments, the petitioners drew the court’s attention to a question that was asked in the Lok Sabha regarding undertaking the delimitation of the constituencies in the State of Telangana along with the UT of J & K. In response to this question, the answer given by Nityanand Rai, Minister of State for Home Affairs, said that the total number of seats in the Assembly of each state will be readjusted after the first census is published after the year 2026.

The government justified its decision to constitute the Delimitation Commission and questioned the belated approach of the petitioners. It relied on the provisions of the J&K Reorganisation Act to defend the move. On the exclusion of four northeast states from the delimitation exercise, the government cited pending litigation in courts with regard to the delimitation exercise.

Before examining the challenge on merits, the court in its judgment highlighted the petitioners’ decision not to assail the validity of the J&K Reorganisation Act. Though the petitioners’ counsel had during submissions attempted to raise it, the court pointed out that no such arguments were incorporated in the petition. But the lawyer tried to impress upon the court by claiming that the challenge to the law was implicit in the petition.

However, the court rejected this contention and observed: “There cannot be any doubt that when a party wants to challenge the constitutional validity of a statute, he must plead in detail the grounds on which the validity of the statute is sought to be challenged.”

It added: “In absence of the specific pleadings to that effect, Court cannot go into the issue of the validity of statutory provisions. The Constitutional Courts cannot interfere with the law made by the Legislature unless it is specifically challenged by incorporating specific grounds of challenge in the pleadings. The reason is that there is always a presumption of the constitutionality of laws.”

What the SC said

The court further said that a constitutional court cannot “casually interfere with legislation made by a competent legislature only by drawing an inference from the pleadings that the challenge to the validity is implicit”. “The State gets a proper opportunity to defend the legislation only if the State is made aware of the grounds on which the legislation is sought to be challenged,” it said.

It then examined the constitutional scheme to reject the petitioners’ contention that the Delimitation Exercise was in violation of Article 170. It said that the legislative assemblies of UTs are governed by the law made by Parliament in accordance with Article 239A. On conjoint reading of relevant provisions from the Constitution, the court held that Parliament by making a law can convert an existing state into one or more UTs.

It is empowered by law to create a body of legislature for the UTs of Puducherry and J&K. Accordingly, the J&K Reorganisation Act provides that there shall be a legislative assembly for the UT of J&K. This was passed under Article 4 of the Constitution which permits Parliament to incorporate such provision as to representations in Parliament and legislature of the state. Such a law, the court added, can always provide for readjustment of constituencies in the newly constituted UT through the Delimitation Exercise.

As for conducting this exercise through the Delimitation Commission, the court noted that by virtue of a provision in the J&K Reorganisation Act, the Delimitation Act of 2002 was made applicable to J&K with effect from 31 October, 2019. “Therefore, there is no illegality associated with the delimitation/readjustment of Parliamentary constituencies of the Union Territory of J&K undertaken by the Delimitation Commission,” it said.

The court explained that the J&K Reorganisation Act further amended the Delimitation Act, 2002 by providing that the words and figures “census held in the year 2001” appearing in the Delimitation Act shall be construed as “census held in the year 2011”.

Therefore, by virtue of the J&K Reorganisation Act, not only provisions of the Delimitation Act, 2002 were made applicable to the UT of J&K, but a mandatory duty of readjustment of the constituencies in the Union Territory both of the Legislative Assembly and Parliament was entrusted to the Delimitation Commission by sub-Sections (2) and (3) of Section 62.

Till 31st October 2019, the Delimitation Commission for the State/Union Territory of J&K under the Delimitation Act, 2002 could not have been established as the said enactment was not made applicable to the State of Jammu and Kashmir till then, the court underlined.

Once the Delimitation Commission was established, there was nothing wrong on the Centre’s part to extend the period of appointment of the chairperson till the task of delimitation/readjustment was completed, the court further held.

On the exclusion of the northeastern states from the purview of the delimitation exercise, the court observed the position and the status of the newly created UT of J&K under the Constitution is completely different from the four northeastern states.

“In its applicability to the Union Territory of J&K, Sections 4 and 9 of the Delimitation Act, 2002 stand amended by requiring readjustment to be carried out on the basis of the census figures of 2011. In case of the North Eastern States, there is no such amendment. Therefore, two unequal cannot be treated as equals. Hence, the argument based on the violation of Constitutional provisions including Article 14 deserves to be rejected,” it said, as it faulted the petitioners for relying upon the answer given by the Union minister of state for home in Lok Sabha.

The said question, court held, dealt with the delimitation of Constituencies in Telangana in the context of Article 170 and not of a UT.

(Edited by Poulomi Banerjee)


Also read: Why Kashmir parties claim ‘Hindu bias’ in delimitation proposal, which adds 6 seats in Jammu


 

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