Supreme Court: In a writ petition filed challenging the legality and validity of the action of constituting a Delimitation Commission for the Union Territory (‘UT’) of Jammu and Kashmir under provisions of the Delimitation Act, 2002 and the exercise of delimitation undertaken by the Commission, the division bench of Sanjay Kishan Kaul and Abhay S. Oka, JJ. held that there is neither illegality associated with the establishment of the Delimitation Commission under the impugned order, nor anything illegal about the exercise of delimitation/readjustment of the constituencies undertaken by it.
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 6-03-2020, 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 UT of J&K and some other States
The Court while dealing with the issue of applicability of Article 170 having the title “Composition of the Legislative Assemblies” to the Union Territory of J & K, said that Article 170 forms part of Chapter III under the title “The State Legislature”, and the said Article does not deal with the legislatures of UT at all. Articles 239A and 239AA which are included in Part VIII of the Constitution are the Articles that deal with the creation of a body to function as legislature and Council of Ministers for certain UT’s.
The Court said that as far as the legislative assembly of the UT of J & K is concerned, Article 170 will have no application as it forms a part of Chapter III of Part VI which deals with only the State Legislature. The reason is that the legislative assemblies of the UT will be governed by the law made by the Parliament in accordance with Article 239A and not by the provisions of Chapter III of Part VI. Thus, the Court rejected the argument that certain provisions of the J&K Reorganisation Act and actions taken thereunder conflict with Article 170, as the said Article is not applicable to the Legislature of the UT of J & K.
Concerning the issue of delimitation of constituencies of the legislative assembly of the UT of J and K, the Court noted that Section 3 of the J&K Representation of the People Act (‘J&K RP Act’) laid down the requirement of the establishment of the Delimitation Commission which provided that the Delimitation Commission shall distribute the seats in the legislative assembly to single member territorial constituencies and delimit them having regard to various factors mentioned in sub-section (2) of Section 3.
The Court also noted that the delimitation of 83 constituencies of the UT of J&K was made under the J&K Reorganisation Act and was incorporated in the Third Schedule as provided in sub-section (5) of Section 14 of the J&K Reorganisation Act. By virtue of the mandate of Section 60(1), the total number of seats in the legislative assembly of the UT was required to be increased from 107 to 114. Thus, by excluding 24 seats from Pakistan occupied areas, the mandate was to increase the seats from 83 to 90.
Further, for giving effect to the increase in the number of seats as aforesaid, the exercise of delimitation for dividing the UT into 90 constituencies and determining the number of seats to be reserved for Scheduled Castes and Schedule Tribes was required to be undertaken. Section 60(1) of the J&K Reorganisation Act, said that the delimitation exercise may be undertaken by the Election Commission, however, Section 62(2) provides that the readjustment of the constituencies as provided under Section 60 in the successor UT of J&K into assembly constituencies shall be carried out by the Delimitation Commission to be constituted under the Delimitation Act, 2002 as amended by the J&K Reorganisation Act.
The Court said that the purport of Section 62 is that if a Delimitation Commission is constituted under the Delimitation Act 2002, the exercise provided by clauses (a) to (c) of Section 60(1) shall be carried out by the Delimitation Commission. However, Section 62(2) refers to the readjustment of the constituencies. But the purport of Section 62(2) is that the readjustment means the creation of 90 constituencies in the newly set up UT. Thus, the process of readjustment contemplated by Section 62(2) is nothing but the exercise of delimitation under Section 60(1).
Thus, the Court held that there is nothing illegal about the exercise of delimitation/readjustment of the constituencies undertaken by the Delimitation Commission for the purposes of dividing the UT into 90 constituencies based on the 2011 census figures.
Concerning the issue of the legality of the appointment of the Delimitation Commission by the Notification of 6-03-2020, the Court said that the notification requires the Delimitation Commission to undertake the exercise of the delimitation of assembly and Parliamentary Constituencies in the UT of J & K, it refers to the exercise of readjustment as provided in sub-section (2) and (3) of Section 62 of the J&K Reorganisation Act, that is delimitation exercise contemplated by sub-section (1) of Section 60 due to the reason of the increase in the membership of the legislative assembly from 83 to 90. Moreover, the readjustment was necessary to be made based on the census figures of the 2011 census as contemplated by Section 4 and Section 9(1) of the Delimitation Act, 2002 as amended by clause (b) of Section 62(1) of the J&K Reorganisation Act.
The Court said that the time limit of 31-07-2008 provided in Section 10(6) of the Delimitation Act, 2002 was never intended to be mandatory. While amending Section 2(f) of the Delimitation Act by the J&K Reorganisation Act, Section 10(6) has not been amended for enlarging the period provided thereunder. Further, it said that the provisions of sub-Sections (2) and (3) of Section 62 will have to be interpreted in a manner that gives effect to the intention of the legislature, thus, if it is held that due to the failure of the legislature to modify the time limit provided in Section 10(6) of the Delimitation Act, 2002, the Central Government is powerless to appoint a Delimitation Commission for the newly created UT, the provisions of Section 62 of the J&K Reorganisation Act will be rendered nugatory.
Thus, the Court held that there is no illegality associated with the establishment of the Delimitation Commission under the impugned order.
[Haji Abdul Gani Khan v. Union of India, 2023 SCC OnLine SC 138, decided on 13-02-2023]
*Judgment authored by: Justice Abhay S. Oka;
*Apoorva Goel, Editorial Assistant has reported this brief.
