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Haji Abdul Gani Khan and Anr. v Union of India and Ors.
[Petition Brief (Civil) No. 237 of 2022]
Abhay S. Oka, J.
1.The main challenge in this written petition under Article 32 of the Constitution of India is the legality and validity of the action to establish a Delimitation Commission for the Union Territory of Jammu and Kashmir under the provisions of the Constitution of India, the Delimitation Act 2002 and the exercise of delimitation. launched by the Commission.
Relevant Facts
2.The Constitution Order (application for Jammu and Kashmir), 2019 with C.O. No. 272 was issued by the Honorable President of India on August 5, 2019. The said Order was issued in exercise of the powers conferred by Article 370 Paragraph (1) of the Indian Constitution. The said order ordered that all provisions of the Constitution, as amended, be applied in relation to the State of Jammu and Kashmir, subject to amendments to Article 367 as provided in the said order.
This regulation added paragraph (4) of Article 367, which provides that the phrase “Constituent Assembly of the State referred to in paragraph (2)” except for paragraph (3) of Article 370 of the Constitution shall read “State Legislative Assembly”. On 6 August 2019, the Honorable President of India, upon the recommendation of Parliament, issued a Statement under Article 370 Paragraph (3) of the Constitution with C.O.No.273 declaring that all clauses of Article 370 are waived to be operational.
3.The Jammu and Kashmir Reorganization Act 2019 (“J&K Reorganization Act” for short) was enacted, which provided for the restructuring of the state of Jammu and Kashmir by dividing it into two union territories. A new union territory of Ladakh was created, encompassing the areas of Kargil and Leh districts in the former state of Jammu and Kashmir.
The Union Territory of Jammu and Kashmir (“the J&K Union Territory” for short) was formed, which included the existing state of Jammu and Kashmir in addition to the districts of Kargil and Leh. The J&K Reorganization Act came into effect on October 31, 2019. According to Section 13 thereof, Article 239A of the Indian Constitution, which previously applied only to the Union Territory of Puducherry, became applicable to the Union Territory of J&K. Section 239A gives Parliament the power to enact a law to create a legislature for the Union Territory.
4.The Delimitation Act 2002, which was not applicable to the former state of Jammu and Kashmir, was made applicable to the newly formed Union Territory of J&K under Section 62 of the J&K Reorganization Act. On March 6, 2020, the Central Government established a Delimitation Commission under Section 3 of the Delimitation Act 2002 for the purpose of delimiting the parliamentary and assembly constituencies in the Union Territory of J&K and the states of Arunachal Pradesh, Assam, Manipur and Nagaland. The commission was headed by a retired judge from that court.
The Electoral Commissioner and the Land Returning Officer were appointed ex officio members of the Boundary Commission. The presidential term was set at one year. An order dated March 3, 2021 amended the previous order dated March 6, 2020 appointing the demarcation commission to the effect that the states of Arunachal Pradesh, Assam, Manipur and Nagaland were removed from the purview of the demarcation commission. With the same notice, the term of office of the President was extended to two years. Notice dated March 6, 2020 was amended by notice dated February 21, 2022 to state that the term of office of the President is two years and two months.
5.Subsection (1) of Section 60 of the J&K Reorganization Act provides that the number of seats in the Legislative Assembly of the Union Territory be increased from 107 to 114 by J&K. Subsection (4) of Section 14 provides that 24 seats in the J&K Union Territory Legislative Assembly shall remain vacant and shall not be included in the calculation of the assembly's total membership.
accusations
6.Very broad and comprehensive sentences have been made in this petition invoking Article 32 of the Indian Constitution. The first challenge concerns the provision on increasing the number of seats in the Legislative Assembly of the J&K Union territory. The second challenge concerns amending the March 6, 2020 Notice by removing the States of Arunachal Pradesh, Assam, Manipur and Nagaland out of demarcation commission scope.
The third complaint relates to the constitution of the delimitation commission itself by virtue of a decision dated March 6, 2020. The complaint is based on the fact that, according to the 2008 order on the delimitation of members of parliament and assembly (“the Delimitation Order 2008” for short) by the election commission of India, the existing Delimitation Commission was dissolved and therefore it was improper and illegal to form a new Delimitation Commission.
The petitioners contended that according to the notice dated 6 March 2020, the Demarcation Commission was appointed by appropriating the jurisdiction of the Indian Electoral Commission (“Electoral Commission” for short) and the Constitution of the Boundary Commission therefore found the provisions of Section 60 para. 2 and 5 of the J&K Conversion Act. The establishment of the demarcation commission is also being challenged for violating Article 170(3) and Articles 14, 19 and 21 of the Constitution.
7.We may note here that on May 13, 2022, this court recorded a submission by Shri Ravi Shankar Jandhyala, the learned leading advocate who appeared for the petitioners, that the petitioners are not seeking to challenge the repeal of Article 370 of the Constitution. In light of that statement, this court determined that certain allegations made in the pleadings in its favor must be ignored. That court also found that the challenge was in fact the exercise of delimitation pursuant to the March 6, 2020 notice, as amended by additional notices dated March 3, 2021 and February 21, 2022.
8.The Union of India has filed an affidavit stating that the Boundary Commission issued a notice in the exercise of its powers under Section 4 Subsection (2) and Subsection (2) while processing this petition on May 5, 2022. of Section 9 of the Delimitation Act of 2002, which contains the order of delimitation of the J&K Union Territory Assembly constituencies and parliamentary constituencies. It is also noted that by a new order dated May 20, 2022, the central government exercised the powers under subsections (2) and (3) of Section 62 of the J&K Restructuring Act and set May 20, 2022 as the date of the order of the demarcation commission of May 5, 2022 comes into force.
The counter-affidavit also notes that the Boundary Commission previously published a draft regulation proposing constituency delineation on March 14, 2022, and solicited objections and suggestions. Copies of the notices/orders of May 5, 2022 and May 20, 2022 were registered by the Election Commission – Respondent No. 5. There is a rejoinder from the petitioners in relation to the counter-affidavits filed by the Union of India and the Electoral Commission.
Presentations by the petitioners
9. Shri Ravi Shankar Jandhyala, the chief learned counsel acting on behalf of the petitioners, has submitted detailed submissions. The summary of their presentations is as follows:
a) That the 2nd caveat of paragraph 3 of Article 170 of the Constitution states that as long as the figures of the first census conducted after the year 2026 are not published, no readjustment of the total number of seats in the Constitution The Legislative Assembly was established on the basis of the 1971 census and the territorial constituency division was readjusted based on the 2001 census of demarcation based on the contested notice of 6 March 2020 is in complete breach of the second condition of Article 170(3).
Similarly, Regulation 3 of Article 82 places an embargo on readjusting the distribution of seats in the House of the People, readjusted based on the 1971 census, and the division of states into territorial constituencies, which were readjusted based on the 2001 census may be readjusted Census Census until figures from first census after 2026 are available A similar embargo was imposed by Articles 330 and 332 of the Constitution on reserving seats for enlisted castes and enlisted tribes until figures are available Census after 2026;
b) Previously, the embargo applied until the figures of the first census after the year 2000 were available. It was amended by the Constitution (Amendment Law 84, 2001) by replacing the year 2000 with the year 2026. It can determine the objectives and reasons for this undermine change;
(c) Until the figures of the first census conducted after the year 2026 are available, the same number of members of the States Legislature will be maintained. Therefore, the attempt to divide J&K Union territory into territorial constituencies was illegal and unnecessary;
(d) Although the petitioners may not have disputed the validity of Section 62 of the J&K Restructuring Act, it violates Article 170(3) of the Constitution and therefore the provisions of Section 62 cannot be implemented. It found that the number of districts in the state legislatures can only be readjusted pursuant to Article 170 and specifically the 2nd condition of subsection (3) thereof and therefore any attempt to reduce the districts of the territory of the J & K Union is in violation opposed Article 170. The Constitution of the Legislative Assembly of the J&K Union Territory should remain unchanged until the figures of the first census conducted after the year 2026 are available;
(e) in respect of Articles 82 and 83, the constituencies of the House of People for the J&K Union territory cannot be reconstituted without the publication of the results of the first census to be conducted after the year 2026;
(f) The opinion of the learned Attorney General of India dated 6 July 2016 on the implementation of Section 26 of the Andhra Pradesh Reorganization Act 2014 (“2014 Act” for short) is very relevant. The learned Attorney General of India held that there is a conflict between Section 26 of the 2014 Act and Article 170 of the Constitution and therefore Section 170 takes precedence.
(g) A derogatory clause in a statute cannot overrule the provisions of the Constitution. It followed a decision by that court in Engineering Kamgar Union v. Electro Steel Casting1 in that name;
(h) The delimitation order of 2008 published by the Electoral Commission cannot be deviated from. The guidelines issued by the Electoral Commission are very relevant in this regard;
(i) Since, pursuant to Section 62 of the J&K Restructuring Act, the demarcation work has been entrusted to the Electoral Commission, the notice dated March 6, 2020 allowing the Demarcation Commission to carry out this exercise is wholly unlawful;
(j) It is applicable law that this Court may have judicial acknowledgment of the proceedings of the Chambers of Parliament. A Honorable Member raised a question in Lok Sabha regarding the implementation of constituency delineation in Telangana State along with J&K Union Territory. The answer given by Shri Nityanand Rai, the Honorable Minister of State at the Ministry of Interior, on August 3, 2021. The question was that the total number of seats in each state's assembly will be readjusted after the first census after the year 2026 is published;
(k) In any event, the appointment of the Demarcation Commission pursuant to Order dated March 6, 2020 is in complete contradiction with Section 3 of the Demarcation Act, which provides that the Demarcation Commission is to be formed as soon as practicable. Subsection (6) of Section 10 of the Delineation Act of 2002 requires that the Delineation Commission complete the practice and issue orders under subsection (1) of Section 10 no later than July 31, 2008. Therefore, the orders approved by the Boundary Commission formed pursuant to the March 6, 2020 Notice are in complete violation of the mandate of Section 10 Subsection (6);
(l) The Demarcation Act 2002 provides for the establishment of a single Demarcation Commission rather than multiple commissions. Therefore, I would confirm that the establishment of the demarcation commission is completely illegal;
(m) The states of Arunachal Pradesh, Assam, Manipur and Nagaland were unlawfully excluded from the scope of the 6 March 2020 notification. These actions were taken on the basis of the letter dated February 22, 2021, received from the Assistant Secretary of the Department of the Interior, indicating that given the pending litigation regarding the demarcation measure in the Northeastern states, the demarcation measure should not be implemented in those states. The above notice may not be modified based on the views of any Deputy Secretary. The Union of India and the Electoral Commission cannot apply different criteria to different states. There was no reason to exclude the other states covered in the March 6, 2020 notification;
(n) Sections 59 to 63 of the J&K-Umwandlungsgesetz not only violate express provisions of the constitution, but also contradict each other. These sections confer demarcation powers on both the Electoral Commission and the Demarcation Commission, making these sections completely unlawful. Subsection (1)(b) of Section 11 of the Boundary Act 2002 permits the Electoral Commission to make changes to the boundary, area or extent of a constituency as described in the Boundary Order already enacted and published;
(o) The omission of the words “but does not include the State of Jammu and Kashmir” from Section 2(f) of the Delimitation Act, 2002 by Subsection (1) of Section 62 of the Reorganization Act, which J&K violates Article 14 of the Indian Constitution;
(p) The electoral commission has already consolidated all demarcation orders under Section 9 of the People's Representation Act of 1950;
(q) Articles 2 to 4 of the Constitution are governed by other provisions of the Constitution and the provisions of these Articles shall not overrule the constitutional rule; And
(r) Notwithstanding the orders of May 5, 2020 and May 20, 2022 made in the exercise of powers under subsection (1) of Section 10 of the Delimitation Act 2002, this automatic petition shall be upheld. The decision of the Constitutional Chamber of this Court in Meghraj Kothari v. Delimitation Commission & Ors.2 do not apply to the facts of the present case.
Indian Union presentations
10Shri Tushar Mehta, the learned Solicitor General of India, who appeared before the Union of India, made the following presentations:
(a) The written petition is being delayed and blocked because the Distinction Commission was established by the contested notice dated March 6, 2020. The notice was amended on March 3, 2021 by removing the states of Arunachal Pradesh, Assam, Manipur and Nagaland. Subsequently, on March 14, 2022, the Commission published a draft of a delimitation order. This application was submitted by March 28, 2022. Due to a challenge to the decision of March 6, 2020, this application was made after a period of more than two years;
(b) During the pendency of this application, the demarcation order pursuant to subsection (1) of Section 10 of the Separation Act 2002 was issued by the Separation Commission, effective on or after March 20, 2022
(c) Under subsection (2) of Section 10 of the Segregation Act 2002 there is a complete prohibition on a court challenging an order made under subsection (1) of Section 10.
In view of the decision of the Constitutional Court in the Meghraj Kothari case2, the ban provided for in Section 10 (2) also applies to an appeal under Section 226 of the Basic Law. Article 329 also creates an obstacle to judicial interference in questions of the validity of constituency delimitation laws. An order to demarcate constituencies has been laid down by law, so that the orders of May 5, 2020 and May 20, 2022 can no longer be questioned;
(d) Sections 60 and 62 of the J&K Restructuring Act apply to different areas. Section 60 relates to electoral districts in general and section 62 deals with electoral districts based on 2011 census figures. He noted that subsection (1) of section 60, which confers power on the Election Boundary Commission, the word “may” used while Section 62 uses the word "shall";
(e) The Electoral Commission has informed the Government of India by letter dated 2 September 2019 that as the Demarcation Commission is formed pursuant to Section 62 of the J&K Reorganization Act, the realignment of the constituencies of the Legislative and Parliamentary Assembly was not required to that the Electoral Commission carried out the exercise provided for in Article 60 of the Delimitation Act;
(f) Section 3 expressly empowers Parliament by law to form a new State/Union Territory and that Act referred to in Section 3 shall provide for appropriate amendments to the First List and the Fourth List to reflect the implement provisions of the law. Section (2) of Section 4 expressly states that no such act shall be considered an amendment of the Constitution for the purposes of Section 368. In the case of Mangal Singh & Anr, a decision of the Constitutional Court was used. v. Union of India3 in that name; and (g) clauses (3) of Articles 81 and 170 shall not apply at all to the territories of the Union.
Reply
11The learned lead counsel, appearing on behalf of the petitioners in rejoinder, urged that while there may not be a specific challenge to the validity of the provisions of the J&K Reorganization Act in this petition, that challenge can always be inferred. He explained that the question of inconsistency between the constitutional provisions and the provisions of the J&K Reorganization Act had not been answered by the learned Solicitor General of India.
shipping consideration
Developments related to the state of Jammu and Kashmir in 2019
12(a) On 5 August 2019, the Constitution (Application to Jammu and Kashmir) Order, 2019 (“Presidential Order 2019” for short) was promulgated by the Honorable President of India in the exercise of the powers under Clause (1) of Article 370 of the Constitution of India. This order was issued in agreement with the Government of Jammu and Kashmir State.
Clause (2) of the Presidential Decree 2019 provides that all provisions of the Indian Constitution, as amended, shall apply in relation to the State of Jammu and Kashmir, subject to the exceptions and amendments provided for in said Decree. . Clause (4) was added to Article 367 relating to the State of Jammu and Kashmir by said Decree, which provided that the phrase “Constituent Assembly of the State referred to in Clause (2)” shall be included in Clause (3) of Article 370 of the Constitution read as the "legislative assembly of the state". The 2019 Presidential Decree went into effect immediately;
(b) The second important event was the declaration under article 370, paragraph 3, of the Constitution (“such declaration” for short) made by the Mr. President on the recommendation of Parliament. It is declared that from August 6, 2019, all clauses of article 370 will expire, except for the exceptions contained in this declaration. It was provided therein that notwithstanding anything to the contrary in Articles 152 and 308, as well as any other articles of the Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, all provisions of the Constitution of Jammu and Kashmir shall apply as India is amended from time to time apply to the state of Jammu and Kashmir;
(c) Therefore, with respect to the Presidential Decree 2019 and said Declaration, with effect from August 6, 2019, all provisions of the Indian Constitution became applicable to the State of Jammu and Kashmir, except as set forth in the Presidential Decree 2019. Pursuant to said Declaration and Presidential Decree from 2019 the special status of the state of Jammu and Kashmir under Article 370 of the Constitution effectively ended;
(d) Another important event that followed was the promulgation of the J&K Reorganization Act, which received the Honorable President's approval on August 9, 2019. The central government set October 31, 2019 as a specific day under the J&K Reorganization Act. Pursuant to Sections 3 and 4 thereof, a new Union Territory, known as the Union Territory of Ladakh, came into effect effective October 31, 2019.
The Union Territory includes the areas of Kargil and Leh Districts. The appointed day also created the Union Territory of J&K. The Union Territory includes the territories of the former state of Jammu and Kashmir, excluding the area covered by the Union Territory of Ladakh. Therefore, effective October 31, 2019, the State of Jammu and Kashmir ceased to exist and the Union Territories of Ladakh and Jammu and Kashmir were created;
(My). The Delimitation Act 2002 became applicable to J & K's Union Territory because the definition of "state" in Section 2, Paragraph (f) includes Union Territories which have a Legislative Assembly. In addition, many other key laws included in Table 1 of the Fifth Schedule of the J&K Restructuring Act became applicable to the J&K Union territory;
(f) The Representation of the People Act 1951 (“the MOP Act 1951” for short) did not apply to elections to fill seats in any of the Jammu and Kashmir State Parliament Buildings and said State Parliament Building. An amendment to the RP Act 1951 was made by the J&K Reorganization Act, making the provisions of the RP Act 1951 applicable to the two newly created Union Territories. Previously, the Jammu and Kashmir People's Representation Act 1957 (J&K R.P Act for short) applied to the state. We may note here that since the Representation of the People Act 1950 (“the RP Act 1950” for short) was applicable to the State of Jammu and Kashmir, the same continues to apply to the two newly created Union Territories;
(g) Pursuant to Section 13 of the J&K Reorganization Act, the provisions of Section 239A which previously applied only to the Union Territory of Puducherry have been made applicable to the Union Territory of J&K. Section 239A provides, among other things, that Parliament may create by law a body to serve as the legislature for the Union Territory of Puducherry.
The question of the validity of the provisions of the J&K Transformation Act.
13We may note at this point that during the hearing on the submission, the lead counsel, who appeared on behalf of the petitioners, attempted to challenge the validity of certain provisions of the J&K Reorganization Act. Therefore, we advise that this petition brief contains no challenge to the constitutional validity of any provision of the J&K Restructuring Act. The Senior Counsel's initial response was that he did not wish to challenge the provisions. However, it subsequently asserted that this petition brief contained an implicit challenge to the relevant provisions of the J&K Restructuring Act.
14Clearly, if a party wishes to challenge the constitutional validity of a statute, it must state in detail the reasons on which it wishes to challenge the validity of the statute. In the absence of relevant concrete arguments, the Court cannot address the question of the validity of the legislation. Constitutional courts may not interfere with a law enacted by the legislature unless it is specifically challenged by including specific grounds for the challenge in the pleadings. The reason is that there is always a constitutional presumption of laws.
The burden of proof is always on the person claiming unconstitutionality. For this purpose, the challenge must be asserted expressly, specifying the specific reasons for the challenge. A constitutional court cannot simply interfere with legislation enacted by a competent legislature by inferring from the claims that challenging validity is implicit. The state has a reasonable opportunity to defend itself against the law only when it is aware of the grounds on which it intends to challenge the law.
15.Although the petitioners had the opportunity to challenge the provisions of the J&K Restructuring Act, the petitioners decided against it. We can also point out here that the petitioners also do not contest the Presidential Decree of 2019 and the said statement. Therefore, we must assume that the 2019 Presidential Order, said statement and the provisions of the J&K Restructuring Act are valid. In this context, the presentations of the Bar Association should be appreciated.
Written Petition Challenge Results
sixteen.The Constitution clearly distinguishes between the States and the Territories of the Union, as can be seen from Article 1 and the first Appendix. Part V of the Constitution deals with the Union. Chapter II of Part V deals with Parliament. Part VI deals with States. Chapter III of Part VI deals with state legislation. Part VIII of the Constitution deals independently with the Union Territories.
17Article 3 provides that Parliament may legislate to create new states and change the territories, borders or names of existing states. Clarification I states that in Article 3(a) to (e) a "state" includes "territory of the Union". Therefore, Explanatory Note I makes it clear that the power of Parliament under Article 3(a) to make an act establishing a new state or amending the boundaries of a state includes the power to make an act establishing a new state. union territory. Clarification II clarifies that the power conferred by Clause (a) on Parliament to legislate to form a new State includes the power to form a Union Territory by uniting parts of a State or Union Territory with another State or Union Territory.
Paragraph (1) of Article 4 provides that any law enacted by Parliament pursuant to the provisions of Article 3 shall include such provisions amending the First List (containing the List of States and Union Territories) and the Fourth List (containing the attribution of seats in the Council of States), insofar as this is necessary to implement the statutory provisions. This Act may also contain supplementary, incidental and consequential provisions, including provisions relating to representation in Parliament and in the legislature or legislatures of the State or States concerned by this Act, if Parliament deems it necessary.
Paragraph (2) of Article 4 clarifies that no law made by Article 3 shall be considered as amending the Constitution for the purposes of Article 368. A provision may be made by the same statute for representation in Parliament and the legislature of the territory of the Union created by that statute. The Constitutional Court ruled in the case of Mangal Singh3 that the power under Article 4 extends far enough to even reduce the total number of members of the Legislative Assembly below the minimum prescribed in paragraph (1) of Article 170.
18First, we will address the issue of the applicability of Article 170 entitled “Composition of Legislative Assemblies” to the territory of the Union of J&K. Article 170 is part of Chapter III entitled “The State Legislature”. Chapter III was incorporated into Part VI of the Constitution, which deals with States. The lawyer who appeared on behalf of the petitioners emphasized the violation of the provisions of Article 170(3) 2.
However, we can point out here that this article does not deal with the legislators of the Union territory at all. Articles 239A and 239AA, contained in Part VIII of the Constitution, deal with the creation of a body to act as legislature and council of ministers for certain areas of the Union. For the sake of simplicity, we reproduce Article 239A, which reads as follows:
"239A. Creation of local legislatures or councils of ministers or both for specific areas of the Union -
(1) Parliament may by law [for the territory of the Union of [Puducherry] -
(a) a body, either elected or partly nominated and partly elected, which acts as the legislature for the territory of the Union, or
(b) a Council of Ministers, or both, with the respective constitution, powers and functions established by law.
(2) Any statute referred to in paragraph (1) shall not be deemed to amend this Constitution for the purposes of Section 368 notwithstanding that it contains any provision which amends or causes an amendment to this Constitution." .
(emphasis added)
Section 239A in its original form provided that Parliament may, by statute for the Union Territory of Puducherry, create a body to act as the Union Territory Legislature or as the Council of Ministers, or both. Such body, intended to serve as the legislature of the union territory covered by section 239A, may be elected or partially nominated and partially elected.
Pursuant to Section 13 of the J&K Reorganization Act, effective October 31, 2019, Section 239A became applicable to the Union Territory of J&K. As indicated in Section (2) of Article 239A, the law contemplated in Section (1) of Article 239A does not apply as an amendment to the Constitution within the meaning of Article 368, even if it contains a provision amending or amending the Constitution.
19Reading Articles 3, 4 and 239A together we find the following:
a) Parliament may transform an existing State into one or more territories of the Union by promulgating a law;
b) Parliament is empowered by law to create a legislature for the Union Territories of Puducherry and J&K. Accordingly, Section 14 Subsection (2) of the J & K Reorganization Act provides that there is a Legislative Assembly for the Union Territory of J & K; And
c) Even if the Act creating a Legislature for the Union Territories of Puducherry and J&K enacted by Parliament has the effect of amending certain parts of the Constitution, it shall not be deemed to amend the Constitution for the purposes of Section 368. .
20Now that we come to the J&K Reorganization Act, it is evident that the Act was enacted by Parliament in the exercise of its Sections 3, 4 and 239A powers. The said law created two union territories instead of the state of Jammu and Kashmir. This law envisages the amendment of the first and fourth appendices in order to implement its provisions.
Section 13 provides that the amendment to Section 239A applies to the Union territory of J&K. Section 13 is a supplementary and consequential provision made by Parliament pursuant to Section (1) of Section 4 for the purpose of implementing the law creating the new territory of the Union of J and K. With regard to paragraph (2) of Article 4, although Section 13 has the effect of amending Article 239a, it is not affected by Article 368 of the Constitution.
21Pursuant to subsection (2) of Section 14 of the J&K Reorganization Act, a Legislative Assembly for the Union Territory of J&K was established. Subsection (3) states that the total number of seats in the Assembly is the Legislature of the Territory of the Union of J&K to be filled by those elected by direct election is 107.
Clause (a) of subsection (4) of Section 14 provides that 24 seats in the Legislative Assembly of said Union Territory shall remain vacant until the area of Union Territory occupied by Pakistan is no longer occupied. We may note here that according to the Constitution of Jammu and Kashmir, the seats in the state legislature, excluding the 24 seats earmarked for Pakistan-occupied territory, numbered 87, of which 7 seats were for scheduled castes and tribes were reserved.
22Regarding the number of electoral districts, reference is also made to Part V of the J&K Restructuring Act, which is entitled “Delimitation of electoral districts”. Subsection (1) of Section 60 states that the number of seats in the Legislative Assembly of the J&K Union Territory will be increased from 107 to 114. However, the 24 excluded seats covered by Pakistan-occupied territory remain the same. Thus, the total number of seats now available for holding elections to the J&K Union territory Legislative Assembly is 90.
23Therefore, as far as the Legislative Assembly of the territory of the Union of J&K is concerned, Article 170 does not apply as it forms part of Chapter III of Part VI which deals only with the State Legislature. It does not apply to the legislatures of the Union Territories. This is because the legislative assemblies of the Union territories concerned are governed by the law passed by Parliament pursuant to Article 239A and not by the provisions of Part VI, Chapter III.
Since Section 170 is not applicable to the legislation of the J&K area of the Union, the argument that certain provisions of the J&K Restructuring Act and measures based thereon are in conflict with Article 170 and in particular its Clause (3) has clearly been misunderstood and deserves to be rejected.
The demarcation exercise
24Now we come to the question of the delimitation of the constituencies of the Legislative Assembly of the Union Territory of J and K. There were two previous enactments dealing with the establishment of the Delimitation Commission. The first was the Delimitation Commission Act 1962 and the second the Delimitation Act 1972. Both Acts were not applicable to the State of Jammu and Kashmir as the definition of State contained in both Acts specifically excluded the State of Jammu. and cashmere.
The same is true of the Delineation Act of 2002. We may note here that Section 3 of the J&K RP Act established the requirement for the establishment of the Delineation Commission, which provided for the Delineation Commission to allocate seats in the Legislative Assembly for the constituencies of a single member and delineate them taking into account various factors mentioned in subsection (2) of Section 3. Section 4-B of the J&K RP Act required the Delimitation Commission to issue an executive order regarding the delimitation of constituencies and issued the same.
In fact, in 1995 the Assembly Constituency Delimitation Order applicable to the state of Jammu and Kashmir was issued. Section 4-C of the J&K RP Act authorized the Electoral Commission to correct typographical errors in the Boundary Commission's final order or errors or omissions. The Electoral Commission also had the power to make changes when the boundaries or names of districts or territorial units mentioned in the Boundary Commission's final order were changed.
25Pursuant to subsection (5) of Section 14 of the J&K Restructuring Act, the Delimitation Order 1995 was amended in accordance with the third Schedule thereto. The third list details the changes in assembly constituency delimitation made by the 1995 Delimitation Order in respect of the existing 83 assembly constituencies out of a total of 107 pursuant to subsection (3) of Section 14. 24 constituencies covering the occupied territories of Pakistan were apparently not covered by the Delimitation Order.
Thus, pursuant to subsection (5) of Section 14, the delineation of 83 constituencies of the Union Territory Legislative Assembly was incorporated by J&K in the form of the Third Schedule defining the boundaries and areas incorporated into the new 83 individual constituencies.
26We now come to Part V of the J&K Reorganization Act, which deals with constituency demarcation. By virtue of Section (a) of Subsection (1) of Section 62, the provisions of the Separation Act 2002 became applicable to the Union Territory of J&K on October 31, 2019. For the sake of simplicity, we reproduce sections 60 to 63 of the J&K Conversion Act as wording:
60. (1) Notwithstanding paragraph (3) of Section 14 of this Law, the number of seats in the Legislative Assembly of the Territory of the Union of Jammu and Kashmir shall be increased from 107 to 114, and the delimitation of constituencies may be determined by the Electoral Commission as follows become:
(a) the number of seats to be reserved for recognized castes and tribes in the Legislative Assembly, taking into account the relevant provisions of the Constitution;
(b) the assembly constituencies into which the territory of the Union is divided, the extent of each such constituency, and in which of them seats are reserved for enlisted castes or enlisted tribes; And
c) Boundary adjustments and description of constituency enlargement in each area of the Union that may be necessary or expedient.
(2) In determining the matters referred to in subsection (1) subparagraphs (b) and (c), the Electoral Commission shall take into account the following provisions, namely:-
(a) all constituencies are single-member constituencies;
(b) all constituencies should, as far as possible, be geographically self-contained and their demarcation should take into account spatial characteristics, existing administrative unit boundaries, communications facilities and facilities for the public; And
(c) Electoral districts in which seats are reserved for enlisted castes and enlisted tribes shall, as far as practicable, be located in areas where the ratio of their population to the total population is greatest.
(3) The Electoral Commission shall, for the purpose of assisting in the performance of its duties under paragraph (1), associate with four persons who may be designated in turn by the central government, being persons who are the members of the Legislative Assembly of the Territory of the Union of Jammu and Kashmir or four members of the House of the People representing the Territory of the Union of Jammu and Kashmir:
Provided that none of the Associate Members have the right to vote or sign any decision of the Electoral Commission.
(4) If the office of extraordinary member becomes vacant due to death or resignation, it is to be filled as far as possible in accordance with paragraph 3.
(5) The Electoral Commission has
(a) publish their proposals for the delimitation of constituencies, together with any dissenting proposals from an Associate Member who wishes to have them published in the Official Journal, and in any other way the Commission considers appropriate, together with an invitation to object and proposals to make the proposals and indicate a date on or after which the proposals will be reconsidered by him;
(b) consider any objections and suggestions received prior to the date so determined; And
(c) after consideration of all objections and suggestions received before the date so fixed, by order or orders defining the delimitation of the electoral districts and causing the publication of that order or orders in the Official Gazette and at that time the order or orders have been published full legal force and will not be challenged in any court.
(6) As soon as practicable after such publication, any resolution relating to the constituencies of the Assembly shall be submitted to the Legislative Assembly of the Territory of the Union of Jammu and Kashmir.
§ 61. (1) The electoral commission can announce it in the official gazette
(a) correction of typographical errors in Orders under Section 60 or errors resulting therefrom by accidental oversight or omission; And
(b) if the boundaries or the name of any territorial division mentioned in any such order or orders are changed, make such changes as may be thought necessary or expedient to bring the order up to date.
(2) Any notice under this Section relating to an electoral assembly shall be filed with the Legislative Assembly as soon as practicable after its issuance.
62.(1) Notwithstanding the publication of the orders pursuant to paragraph (1) of Article 10 of the Demarcation Act 2002 or anything contained in paragraph (2) or paragraph (4) of said Article, from the date specified the Demarcation The 2002 Act shall be deemed modified as follows:
(a) in Section 2(f), the words “but does not include the State of Jammu and Kashmir” are omitted; And
(b) For the purpose of delimiting the constituencies of the Assembly and Parliament, the words and number "Census conducted in 2001", wherever they occur, shall be construed as the words and number "Census conducted in 2001 year 2011" .
(2) The redistribution of Section 60 constituencies in the territory of the Successor Union of Jammu and Kashmir to assembly constituencies shall be effected by the Delimitation Commission established under the Delimitation Act of 2002, as amended hereby Act, and shall come into effect on the date announced by the central government by an im order published in the Official Journal.
(3) The reallocation of constituencies pursuant to Section 11 in the successor territory of the Union of Jammu and Kashmir to parliamentary constituencies shall be carried out by the Delimitation Commission established pursuant to the Delimitation Act of 2002 as amended by this Act and shall come into force on the date the central government by an order published in the Official Gazette.
63. Special Provisions Regarding the Realignment of Assembly and Parliament Districts.-
Notwithstanding the provisions of Articles 59 to 61, until the publication of the figures for the first census conducted after the year 2026, it is not necessary to restate at will the division of the territory of the Successor Union of Jammu and Kashmir into parliamentary and constitutive references to the “latest census figures” in this part shall be construed as references to the 2011 census figures.”
(emphasis added)
27As mentioned above, the delineation of 83 constituencies in the Union Territory was made under the J&K Reorganization Act and included in the Third Schedule as provided for in subsection (5) of Section 14. Under the mandate of subsection (1) of Section 60, this was necessary to increase the total number of seats in the Union Territory Legislative Assembly from 107 to 114. By excluding 24 seats from the Pakistan-occupied territories, the mandate was to increase the seats from 83 to 90.
In order to implement the aforementioned increase in the number of seats, the demarcation exercise had to be conducted to divide the Union Territory into 90 constituencies and determine the number of seats to be reserved for the enlisted castes and tribes. Article 60 paragraph (1) provides that this delimitation can be carried out by the electoral commission.
However, subsection (2) of Section 62 provides that the redistribution of constituencies under Section 60 in the territory of J&K's successor union to assembly constituencies shall be carried out by the Delimitation Commission, which shall be constituted under the Delimitation Act. , 2002 as amended by the J&K Conversion Act. Subsection (1) of Section 60, as mentioned above, provides that the exercise of dividing the newly constituted Union Territory into 90 constituencies and providing reserves may be carried out by the Electoral Commission.
However, the significance of Section 62 is that if a demarcation commission is formed under the demarcation commission 2002, the exercise provided for in clauses (a) to (c) of subparagraph (1) of section 60 shall be carried out by the commission of demarcation commission. However, Article 62(2) refers to the reorganization of districts. However, the meaning of Section 62 (2) is that the reorganization means the creation of 90 constituencies in the newly established Union area. Thus, the readjustment process provided for in Article 62 subsection (2) is nothing other than the delimitation exercise under Article 60 subsection (1).
28If we look at the provisions of the 2002 Demarcation Act, that tells us what a readjustment is. Section 4 reads as follows:-
"4. Duties of the Commission.-
(1) The readjustment shall be based on the census figures of the allocation of seats in the House of the People to the various States and the total number of seats taken at the 1971 census taken by the Delimitation Commission established pursuant to Article 3 of the Delimitation Act of 1972 (76 of 1972). in the Legislative Assembly of each State shall be deemed to be the readjustment made by the Commission for the purposes of this Act.
(2) Subject to the provisions of subsection (1) and any other statutes then in force, the Commission shall readjust the division of each State into territorial constituencies for the purposes of elections to the House of People and Legislative Assembly of the State on the basis of the census figures verified in the census conducted in [2001]:
Provided that in such reorganization a State is allotted only one seat in the House of the People, the entire State constitutes a territorial constituency for the purposes of elections to that State's House of the People."
(emphasis added)
It is important to note that pursuant to Section (b) of Subsection (1) of Section 62 of the J&K Reorganization Act, the year 2001 is replaced by the year 2011 with respect to the J&K Territory Legislative Assembly. K Union 29. Under Section 9 of the Demarcation Act 2002, the Demarcation Commission was given special powers to implement the demarcation measure. Article 9 reads as follows:
"9. Demarcation of the constituencies.-
(1) The Commission shall then, in the manner provided herein, allocate the seats in the People's House allotted to each State and the seats allotted to each State's Legislature, as restated on the basis of the 1971 Census, into a single member-territory constituency and delineate them thereon of the verified census figures at the census conducted in the year [2001], taking into account the provisions of the Constitution, the provisions of the law referred to in Article 8 and the following provisions:-
(a) All electoral districts shall, as far as possible, be geographically closed areas, and in their delimitation account shall be taken of spatial characteristics, existing administrative unit boundaries, facilities of communication and public convenience;
(b) all assembly constituencies are delimited to lie entirely within one parliamentary constituency;
(c) the constituencies in which seats are reserved for the registered castes shall be distributed in different parts of the State and shall be settled as far as possible in those areas where the proportion of their population to the total population is comparatively large; and (d) constituencies in which seats are reserved for incorporated tribes shall, so far as practicable, be located in areas where the ratio of their population to the total population is greatest.
(2) The Commission:
(a) Publish their proposals for the delimitation of constituencies, together with any dissenting proposals from an Associate Member who wish to have them published, in the Gazette of India and in the gazettes of all States concerned and also in any other manner they think fit;
(b) indicate a date on or after which Proposals will be reconsidered by him;
(c) Consider all objections and suggestions received before the appointed time and, for the purpose of that consideration, hold one or more public meetings in each State at such place or places as it deems appropriate; And
(d) thereafter determined by one or more Orders-
(i) the demarcation of parliamentary constituencies; And
(ii) the delimitation of the assembly constituencies of each state.”
(emphasis added)
As noted above, pursuant to Clause (b) of Section 62 Subsection (1) of the J&K Restructuring Act, the year 2001 appearing in Subsection (1) of Section 9 of the Delimitation Act 2002 should be read as 2011 March 6, 2020, since the previous redistribution exercise of the old state was not conducted based on the 2011 census figures, the demarcation commission set up on March 6, 2020, conduct the demarcation or realignment exercise based on the 2011 census figures Divide Union Territory into 90 constituencies based on 2011 census figures not illegal.
30Before we delve into the question of the legitimacy of the Boundary Commission's appointment, we need to address the parliamentary constituencies in the newly created Union Territories of J&K and Ladakh. In the First Schedule of the RP Act 1950, the former state of Jammu and Kashmir was allocated a total of 6 unreserved seats for Scheduled Castes and Tribes.
Section 10 of the J&K Reorganization Act states that out of 6 seats allocated to the former state, 5 will be allocated to the Union Territory of J&K and one to the Union Territory of Ladakh. Thus, Article 11 provides that the 1976 Parliamentary District Delimitation Order will be amended in accordance with the provisions of the second appendix of the said Law, therefore the delimitation of the five parliamentary constituencies of the Union Territory of J&K and one constituency of the Union Territory of Ladakh was made in accordance with Section 11 created the second appendix.
31We have already quoted Section 60 of the J&K Transformation Act. Clause (c) of subsection (1) thereof provides that, in consideration of the increase in the number of seats in the Legislative Assembly, the adjustments in the boundaries and description of the enlargement of the parliamentary districts in any area of the Union may be made by the Electoral Commission. Subsection (3) of Section 62 provides that the redistribution of constituencies under Section 11 in subsequent Union territories into parliamentary constituencies is to be carried out by the Boundary Commission.
The new regulation referred to in Section 62 (3) is the new regulation and description of the scope of the constituencies provided for in Section 60 (1). This was necessitated by the need to re-regulate/limit 90 constituencies of the Legislative Assembly. Therefore, there is no illegality associated with the demarcation/reorientation of the parliamentary constituencies of the J&K union territory carried out by the demarcation commission.
The legality of the appointment of the demarcation commission by decision of March 6, 2020
32.The contested decision of March 6, 2020 on the formation of the demarcation commission reads as follows:
“Ministry of Law and Justice
Legislative Department
NOTIFICATION
New Delhi, March 6, 2020
SO. 1015 (EN). - In exercising the powers conferred by Section 3 of the Delimitation Act 2002 (33 of 2002), the Central Government hereby constitutes the Delimitation Commission for the purpose of delimiting the Constituencies of Assembly and Parliament in the territory of the Union of Jammu and Kashmir and the States of Assam, Arunachal Pradesh, Manipur and Nagaland, consisting of the following members, namely:-
(i) Judge (retired) Ranjana Prakash Desai - President
(ii) Shri Sushil Chandra, Elections Commissioner - Member, (ex-officio)
(iii) the State Commissioner for Elections of the territory of the Union State concerned designated pursuant to Article 243K, paragraph 1, or pursuant to Article 243L, paragraph (1) of the Constitution, as the case may be.
2. The appointment of Judge (ret.) Ranjana Prakash Desai is for one year from the date of publication of this notice in the Official Gazette or pending further orders, whichever comes first.
3. The aforementioned demarcation commission demarcates the constituencies, -
(i) the Territory of the Union of Jammu and Kashmir under the provisions of Part V of the Jammu and Kashmir Reorganization Act, 2019 (34 of 2019) and the provisions of the Delimitation Act, 2002 (33 of 2002).
(ii) the States of Assam, Arunachal Pradesh, Manipur and Nagaland in accordance with the provisions of the Delimitation Act 2002 (33 of 2002)."
(emphasis added)
Therefore, it is evident that when this Notice requests the Delimitation Commission to implement the delimitation of assembly and parliamentary constituencies in the J&K Union Territory, it refers to the implementation of the realignment provided for in subsections (2) and (3). of Article 62, which is nothing more than an exercise of demarcation contemplated in subsection (1) of Article 60 due to the increase in the membership of the Legislative Assembly from 83 to 90. Also, the readjustment had to be made based on census figures from the 2011 census under Section 4 and Subsection (1) of Section 9 of the Delimitation Act 2002 as amended by Section (b) of Subsection (1) of Section 62 of the J&K Restructuring Act.
33.One of the arguments put forward by the petitioners is that the 2002 Demarcation Act provides for the establishment of a single and no more than one Demarcation Commission. As mentioned above, the Delimitation Act 2002 was first made applicable to the state of Jammu and Kashmir from October 31, 2019. Even the 1962 and 1972 demarcation laws were not applicable to the state of Jammu and Kashmir.
The J&K Reorganization Act not only made the provisions of the 2002 Delimitation Act applicable to J&K's Union Territory, but also introduced a mandatory obligation to redraw constituencies within the Union Territory, by both the Legislative Assembly and the Union Parliament. conferred upon the Delineation Commission by subsections (2) and (3) of Section 62. As of October 31, 2019, the J&K Union/State Territory Delimitation Commission could not be established under the Delimitation Act of 2002 as said promulgation did not apply to the State of Jammu and Kashmir by then.
34.Section 10 subsection (6) of the Delimitation Act 2002 reads as follows:
"10. Publication of orders and their execution date.-
(6) The Commission shall endeavor to complete and publish each of its orders referred to in subsection (1) in the manner provided for in this subsection 2 [within a time limit no later than 31 July 2008] pursuant to section 3.”
Subsection (6) uses the word endeavor. Section 10A of the Separation Act 2002 indicates that the July 31, 2008 deadline specified in subsection (6) of Section 10 is not sacrosanct as it gives the Honorable President authority to overrule the exercise of Separation in a State in certain circumstances postpone. Therefore, the period provided for in Section 10 subsection (6) was never intended to be mandatory. Although Section 2(f) of the Boundary Act was amended by the J&K Restructuring Act, subsection (6) of Section 10 was not amended to extend the time limit provided therein. However, the will of the legislature, which is reflected in Section 62 (2) and (3) of the J&K Transformation Act, is very clear.
The fact that the delimitation commission was commissioned to carry out the readjustment according to Section 62 (2) and (3) on the basis of the figures from the 2011 census already indicates a legislative intention on the part of the Union Demarcation Commission of Jammu and Kashmir are exempt from the requirement to complete the exercise by the end of July 2008 , not affected.
If it is determined that the central government does not have the power to appoint a demarcation commission for the newly created Union territory because the legislature has not amended the time limit provided for in subsection (6) of Section 10 of the Demarcation Act 2002, the provisions of Section 62 of the J&K Conversion Act is repealed. A law cannot be construed to make some of its provisions unnecessary. A law must be constructed and interpreted in such a way that it is enforceable. Therefore, the argument will have to be rejected on the basis of Section 10(6) of the 2002 Delimitation Act.
35.Articles 2 and 3 of the Constitution allow Parliament to create new states and union territories. Consequently, the two new union territories were created. The J&K Reorganization Act, which created the two new union territories, gives the Boundary Commission the function of redistributing constituencies under the 2002 Boundary Act. Article 4 of the Constitution allows Parliament to include such provisions in the law prepared under Article 3 for the formation of the new States and Territories of the Union that were necessary to implement the provisions of the law.
This law may also contain provisions regarding representation in the parliament and legislature of the state or states affected by this law. Therefore, such a law enacted under Article 3 may always provide for the reorganization of constituencies in the newly constituted States or Union Territories by the Boundary Commission. Therefore, we are of the opinion that there is no illegality in the establishment of the demarcation commission according to the contested decision of March 6, 2020.
36.By order dated March 6, 2020, the President of the Demarcation Commission, who was a retired judge of that court, was appointed for a period of one year. With a decision dated March 3, 2021, this period was extended to two years. The third contested notice of February 21, 2022 extended the two-year term to two years and two months. Once the demarcation commission is in place, there is nothing to prevent the central government from extending the presidential appointment period until the demarcation/realignment task is complete. The 2002 Delimitation Act does not specify the duration of the President's appointment.
Excludes the Northeast from the scope of the March 6, 2020 Notice
37.Another challenge that is under serious pressure is that part of the second contested notice dated March 31, 2021, which excluded the states of Arunachal Pradesh, Assam, Manipur and Nagaland from the scope of the Demarcation Commission, which came with the notice dated March 6, 2021. March 2020 Counter-affidavit filed by Union of India relied on letter dated 22 February 2021 issued by Assistant Secretary (NE-III), Ministry of Home Affairs, Government of India.
Paragraphs 5 and 6 of the counter-affidavit state that the demarcation commission established on 12 July 2002, chaired by a retired judge of that court, had completed the demarcation exercise in relation to all but four of the states of Assam, Arunachal Pradesh, and Manipur Nagaland. It is claimed that the demarcation of these four states has been postponed for security reasons. Section 10A of the Demarcation Act 2002 permitted this course.
Although these four states were part of the March 6, 2020 notice, the letter dated February 22, 2021 states that several petitions regarding the demarcation exercise were pending before that court as well as the Supreme Court of Manipur in the Northeastern United States and that discrepancies in the 2001 census figures relating to these states were pointed out in the court proceedings. In fact, it is stated that a number of notices have been issued regarding these discrepancies. Therefore, this letter was issued with the approval of the competent authority, which stated that it may not be appropriate to grant an extension of the delimitation process in the four Northeastern states.
The mandate of the chairman of the delimitation commission established with the first contested decision of March 6, 2020 expired on March 5, 2021. In view of the aforementioned letter, the Chair's mandate was extended for a further year by The second contested communication of March 3, 2021 stated that four states were excluded. Thus, the term of office of the Demarcation Commission established as a result of the March 6, 2020 Notice has been extended by only one year in relation to the territory of the Union of J&K. The third contested notice extended the deadline further. for a period of two months.
Section 10A of the Separation Act 2002 itself allows for the exercise of segregation to be deferred in certain cases. Furthermore, the position and status of the newly created J&K Union Territory under the Constitution is entirely 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 are amended to require readjustment based on 2011 census figures. There is no such change in the Northeastern states. Therefore, two unequals cannot be treated equally. Therefore, the argument based on violation of constitutional provisions, including Article 14, deserves to be rejected.
38.The lawyer who appeared for the applicants did not dispute that the draft delimitation order was issued on March 14, 2022. The final decree was issued on May 5, 2022 and came into effect on May 20, 2022. Although he accepts that he has not challenged these subsequent orders, Counsel argued that the petitioners cannot challenge this order in light of subsection (2) of Section 10 which provides that every order shall have the force of res judicata and shall not be challenged in any court.
Indeed, based on a decision of the Constitutional Court in the Megharaj Kothari case2, the learned Attorney General emphasized that it is the intention of the legislature that once an order issued by the Boundary Commission is issued under Section 10 Subsection (1), they will be treated as law, which cannot be challenged in any court. In paragraph 21 of that decision, the Constitutional Court found that orders pursuant to Sections 8 and 9 of the Delimitation Act 2002 pursuant to Section 10(1) are not part of an Act of Parliament, but have the same effect. In any case, the Boundary Commission's order was not questioned in this petition.
39.We may note here that the learned Attorney General's argument that the challenge to the March 6, 2020 notice was delayed in filing this petition on March 28, 2022 and for such delay has a great deal of substance and is not a valid explanation. In addition, the notification of March 6, 2020 was essentially complied with by completing the delimitation exercise, since the draft regulation was also published on March 14, 2022.
40In the first sentence of the written application, the increase in the number of seats from 107 to 114 is to be contested. Such a provision is contained in Section 60 (1). Without calling into question the legality of one of the provisions of the J&K Reorganization Act, the Seat Upgrading Act, is said to violate Articles 81, 82, 170, 330 and 332 of the Indian Constitution.
Article 81 deals with the composition of the People's House; Article 82 deals with the recruitment and allocation of seats in the House of Parliament after the census and Article 170 deals with the state legislatures. None of these provisions relate to the legislation of any territory of the Union. Article 330 deals with reserving seats for scheduled castes and tribes in the House of the People. Article 332 deals with the reservation of seats for incorporated castes and tribes in the state legislatures.
Neither provision deals with the reservation of seats for the Parliament of Union Territories. In any event, even assuming that Section 332 can be applied to the reservation of seats for recognized castes and tribes in the legislatures of Union territories, this does not show how increasing the total number of seats in the legislature will violate Article 332, provided that the reserve is maintained in the formula provided for in Article 332.
41.Another argument to be made is that the designation of 114 seats in the legislature of J&K's newly formed Union Territory is unlawful. This registration does not need to be taken into account, as the validity of Section 60 (1) J&K UmwG is not in question.
42.Another argument put forward was that it was not possible to deviate from the 2008 demarcation order published by the election commission. A reading of the said ordinance shows that it reflects the delimitation of the Parliamentary Assembly and Legislative Assembly constituencies established by the 1976 and 1995 Parliamentary and Assembly Constituency Delimitation Orders for the State of Jammu and Kashmir. Both the 1976 Orders and the 1995 Orders were expressly amended by the J&K Reorganization Act under Sections 11(4) and 14(5) as provided in the second and third Schedules thereto. Therefore the argument must be rejected.
43.The petitioners have overlooked that Section (b) of Subsection (1) of Section 62 of the J&K Reorganization Act further amended the Demarcation Act 2002 by providing that words and numbers appear "Census conducted in 2001" included in the Delimitation Act is to be understood as “the census carried out in 2011”. For its application to the Union territory of J&K, the year 2001 in Section (1) of Section 9 of the Delimitation Act replaced the year 2002 with the year 2011 and with it the distribution of seats in the House of Representatives of the persons and seats allocated to the Legislative Assembly to be readjusted based on the 2011 census and delimitation based on the figures from the 2011 census.
The effect of Article 63 is that once the readjustment/delineation has been performed based on the 2011 census numbers, they will remain frozen until the numbers corresponding to the first post-2026 census are available for J&K Union Territory seats was carried out by the delimitation commission on the basis of the 2011 census figures. With regard to Section 63, only additional readjustments were made after the publication of the census figures after the year 2026.
44.Relying on the opinion of the learned Attorney General of India is misplaced as it is only a question of the provisions of the A.P. Reorganization Act goes. 2014. The petitioners cannot rely on the Honorable Minister's response in the Lok Sabha as it relates to constituency delineation in Telangana in the context of Article 170. In any case, this statement, as well as the Honorable Minister's response, have no bearing on the interpretation of the J&K Conversion Law.
45.The learned senior counsel appearing before the petitioners made a vague attempt to claim that the exercise conducted for the newly created J&K Union Territory was not conducted on the basis of the Uttar Pradesh Reorganization Act 2000 and the Andhra Pradesh Reorganization. Act of 2014. In both Acts there is no provision equivalent to clause (b) of subsection (1) of Section 62 of the J&K Reorganization Act, which amended the provisions of the Delimitation Act of 2002 in its applicability to the newly formed Union Territories by replacing the year 2001 with the year 2011.
46.Therefore, the claims made by the petitioners are totally unfounded. However, we can clarify that the judgment's findings are based on the validity of the exercise of power carried out in 2019 under Article 370 paragraphs (1) and (3) of the Constitution. We are aware that the question of the validity of the exercise of these powers is the subject of petitions pending before this court.
Therefore, we have not addressed the issue of validity. Nothing in this sentence shall be construed as conferring our imprimatur on the exercise of the powers contemplated by paragraphs (1) and (3) of Article 370 of the Constitution.
47.The appeal is therefore dismissed without incurring any costs.
........................J. (Sanjay Kishan Kaul)
........................J. (Abhay S. Oka)
Neu-Delhi;
February 13, 2023.
1 2004 (6) StGB 36
2 1967 (1) RCS 400
3 1967 (2) RCS 109
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