By the said order, Clause (4) was added to Article 367 providing that the expression “Constituent Assembly of the State referred to in clause (2)” in the proviso to clause (3) of Article 370 of the Constitution, shall be read as “Legislative Assembly of the State”. The Union Territory of Jammu and Kashmir (for short, ‘the Union Territory of J & K) was formed comprising the 2 existing State of Jammu and Kashmir other than Kargil and Leh Districts. On 6 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. Sub-Section (4) of Section 14 provides that 24 seats in the Legislative Assembly of the Union territory of J & K shall remain vacant and shall not be taken into account for reckoning the total membership of the Assembly. The petitioners contended that the Delimitation Commission has been appointed under the notification dated 6 March 2020 by usurping the jurisdiction of the Election Commission of India (for short, ‘the Election Commission) and therefore, the constitution of the Delimitation Commission was ultra vires the provisions of sub-Sections (2) and (5) of Section 60 of the J&K Reorganisation Act.
A counter affidavit has been filed by the Union of India pointing out that during the pendency of this writ petition, on 5 May 2022, a notification has been published by the Delimitation Commission in the exercise of powers under sub-Section (2) of Section 4 and sub-Section (2) of Section 9 of the Delimitation Act, 2002 containing the order of the delimitation of Assembly Constituencies of the Union territory of J & K and Parliamentary Constituencies. It is also pointed out that by a further order dated 20 May 2022, the Central Government exercised powers under sub-Sections (2) and (3) of Section 62 of the J&K Reorganisation Act appointing 20 May 2022 as the date on which order dated 5 May 2022 issued by the Delimitation Commission shall come into force. Similarly, the 3 7 proviso to Article 82 imposes an embargo on the readjustment of allocation of seats in the House of the People readjusted on the basis of the 1971 census and the division of States into territorial constituencies as may be readjusted on the basis of the 2001 census till the figures of the first census conducted after 2026 are available. The Government cannot undermine the objects and reasons for the said amendment; (c) Till the figures of the first census conducted after the year 2026 become available, the number of members of the Legislative Assembly of the States remains the same.
The constitution of the Legislative Assembly of the Union Territory of J & K must remain the same till the figures of the first census conducted after the year 2026 are made available; (e) In view of Articles 82 and 83, constituencies of the House of the People for the Union territory of J & K cannot be reconstituted without the publication of the results of the first census conducted after the year 2026; (f) The opinion rendered by the learned Attorney General for India on 6 July 2016 concerning the implementation of Section 26 of the Andhra Pradesh Reorganisation Act, 2014 9 (for short, ‘the 2014 Act’) is very relevant. The guidelines issued by the Election Commission are very relevant on this behalf; (i) As under Section 62 of the J&K Reorganisation Act, the work of delimitation has been entrusted to the Election Commission, the notification dated 6 March 2020 which permits Delimitation Commission to undertake the said exercise, is completely illegal; (j) It is a settled law that this Court can take judicial notice of 10 the proceedings of the Houses of Parliament. The answer given by Shri Nityanand Rai, the Hon’ble Minister of State in the Ministry of Home Affairs on 3 August 2021 to the question was 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; (k) In any event, the appointment of the Delimitation Commission under the order dated 6 March 2020 is completely contrary to Section 3 of the Delimitation Act which provides that the Delimitation Commission shall be constituted at the earliest.
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Hence, the orders passed by the Delimitation Commission constituted under the notification dated 6 March 2020 are in complete violation of the mandate of sub-Section (6) of Section 10; 11 (l) The Delimitation Act, 2002 contemplates the constitution of a single Delimitation Commission and not multiple Commissions.
Sub-Section (1)(b) of Section 11 of the Delimitation Act, 2002 permits the Election Commission to make any changes in the boundary, area, or the extent of any constituency as described in the delimitation order already issued and published; (o) The act of omission of the words “but does not include the State of Jammu and Kashmir” from Section 2(f) of the Delimitation Act, 2002 by sub-Section (1) of Section 62 of the J&K Reorganisation Act infringes Article 14 of the Constitution of India; (p) Consolidation of all the delimitation orders was already made by the Election Commission in accordance with Section 9 of the Representation of the People Act, 1950; (q) Articles 2 to 4 of the Constitution are subject to other provisions of the Constitution and the provisions of the said Articles cannot override the Constitutional scheme; and (r) Notwithstanding the orders dated 5 May 2020 and 20 May 2022 passed in the exercise of powers under sub-Section 13 (1) of Section 10 of the Delimitation Act, 2002, the present writ petition is maintainable.
Shri Tushar Mehta, the learned Solicitor General of India appearing for the Union of India has made the following submissions: (a) Writ petition suffers from delay and latches as the Delimitation Commission was constituted by the impugned notification dated 6 March 2020. During the pendency of this petition, the delimitation order under sub-Section (1) of Section 10 of the Delimitation Act, 14 2002 has been issued by the Delimitation Commission which has been brought into force with effect from 20 March 2022; (c) Under sub-Section (2) of Section 10 of the Delimitation Act, 2002, there is a complete bar on any Court questioning the order passed under sub-Section (1) of Section 10.
He pointed out that sub-Section (1) of Section 60 which confers power on the Election Commission of delimitation uses the word “may” whereas Section 62 uses the 15 word “shall”; (e) The Election Commission by a letter dated 2 September 2019 informed the Government of India that since the Delimitation Commission is constituted under Section 62 of the J&K Reorganisation Act which is carrying out readjustment of Parliamentary and Legislative Assembly constituencies, it was not necessary for the Election Commission to undertake the exercise under Section 60 of the Delimitation Act; (f) Article 3 specifically empowers Parliament by law to form a new State/Union Territory and the said law referred to in Article 3 must provide for the appropriate amendments to the First Schedule and Fourth Schedule for giving effect to the provisions of the law. He submitted that the issues of inconsistency between the Constitutional provisions and the provisions of the J&K Reorganisation Act have not been answered by the learned Solicitor General of India. Clause (4) was added by the said Order to Article 367 in relation to the State of Jammu and Kashmir which provided that the expression “Constituent Assembly of the State referred to in clause (2)” in the proviso to clause (3) of Article 370 of the Constitution shall be read as “Legislative Assembly of the State”. It was provided therein that notwithstanding anything contained to the contrary in Articles 152 and 308 as well as any other Article of the Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, all the provisions of the Constitution of India as amended from time to time shall apply to the State of Jammu and 18 Kashmir; (c) Thus, in view of the 2019 Presidential Order and the said declaration, with effect from 6 August 2019, all the provisions of the Constitution of India became applicable to the State of Jammu and Kashmir except the modifications provided in the 2019 Presidential Order.
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Thus, with effect from 31 October 2019, the State of Jammu and Kashmir ceased to exist and the Union Territories of Ladakh, as well as Jammu & Kashmir, were brought into existence; (e).
In addition, many other Central enactments incorporated in Table-1 of the Fifth Schedule to the J&K Reorganisation Act became applicable to the Union territory of J & K ; (f) The Representation of the People Act, 1951 (for short ‘the RP Act of 1951’) was not applicable to the elections to fill in the seats in either House of Parliament in the State of Jammu and Kashmir and the House of Legislature of the said State. We may note here that as the Representation of the People Act, 1950 (for short ‘the RP Act of 1950’), was applicable to the State of Jammu and Kashmir, the same continues to apply to the two newly created Union Territories; (g) By virtue of Section 13 of the J&K Reorganisation Act, the provisions contained in Article 239A which were earlier applicable only to the Union Territory of Puducherry were made applicable to the Union Territory of J and K. 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. Therefore, we will have to proceed on the footing that the 2019 Presidential Order, the said declaration and the provisions of the J&K Reorganisation Act are valid. Thus, Explanation I makes it amply clear that the power of Parliament under Clause (a) of Article 3, to make a 23 law to form a new State or to alter a boundary of a State includes a power to make a law to form a new Union Territory. Explanation II clarifies that the power conferred by clause (a) on Parliament to enact the law to form a new State includes a power to form a Union Territory by uniting parts of any State or Union Territory to any other State or Union Territory.
Clause (1) of Article 4 provides that any law made by Parliament as provided in Article 3 shall contain such provisions for the amendment of the First Schedule (containing the list of States and Union Territories) and Fourth Schedule (containing allocation of seats in the Council of States) as may be necessary for the purposes of giving effect to the provisions of the law. 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 Union Territories. Creation of local Legislatures or Council of Ministers or both for certain Union territories — (1) Parliament may by law create [for the Union territory of [Puducherry] — (a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or (b) a Council of Ministers, or both with such constitution, powers and functions, in each case, 25 as may be specified in the law. Accordingly, sub-Section (2) of Section 14 of the J & K Reorganisation Act provides that there shall be a Legislative Assembly for the Union Territory of J & K.; and c) Even if the law made by Parliament creating a body of legislature for Union territories of Puducherry and J&K has the effect of amending certain parts of the Constitution, it shall not be deemed to be an amendment of the Constitution for the purposes of A rticle 368. Under sub-section (2) of Section 14 of the J&K Reorganisation Act, a Legislative Assembly for the Union territory of J and K has been created. Clause (a) of sub- section (4) of Section 14 provides that 24 seats in the Legislative Assembly of the said Union territory shall remain vacant until the area of the Union Territory under the occupation of Pakistan ceases to be so occupied. Hence, as far as the Legislative Assembly of the Union territory 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.
Section 4-B of the J&K RP Act provided for the Delimitation Commission to pass an order regarding the delimitation of constituencies and publish the same. The Third Schedule contains the details of the amendments to the delimitation of the assembly constituencies made by the said Delimitation Order of 1995 in relation to the existing 83 assembly constituencies out of a total 107 as provided in sub-section (3) of Section 14. (1) Without prejudice to sub-sections (3) of section 14 of this Act, the number of seats in the Legislative Assembly of Union territory of Jammu & Kashmir shall be increased from 107 to 114, and delimitation of the constituencies may be determined by the Election Commission in the manner hereinafter provided— (a) the number of seats to be reserved for the Scheduled Castes and the Scheduled Tribes in the Legislative Assembly, having regard to the relevant provisions of the Constitution; (b) the assembly constituencies into which the Union territory shall be divided, the extent of each of such constituencies and in which of them seats shall be reserved for the Scheduled Castes or for the Scheduled Tribes; and (c) the adjustments in the boundaries and description of the extent of the parliamentary constituencies in each Union territory that may be necessary or expedient. (3) The Election Commission shall, for the purpose of assisting it in the performance of its functions under sub-section (1), associate with itself as associate members, four persons as the Central Government may by order specify, being persons who are the members of the Legislative Assembly of the Union territory of Jammu & Kashmir or four members of the House of the 32 People representing the Union territory of Jammu and Kashmir: Provided that none of the associate members shall have a right to vote or to sign any decision of the Election Commission.
(5) The Election Commission shall— (a) publish its proposals for the delimitation of constituencies together with the dissenting proposals, if any, of any associate member who desires publication thereof in the Official Gazette and in such other manner as the Commission may consider fit, together with a notice inviting objections and suggestions in relation to the proposals and specifying a date on or after which the proposals will be further considered by it; (b) consider all objections and suggestions which may have been received by it before the date so specified; and (c) after considering all objections and suggestions which may have been received by it before the date so specified, determine by one or more orders the delimitation of constituencies and cause such order or orders to be published in the Official Gazette, and there upon such publication, the order or orders shall have the full force of law and shall not be called in question in any court. (1) On and from the appointed day, notwithstanding the publication of orders under sub- section (1) of section 10 of the Delimitation Act, 2002 or anything contained in sub-section (2) or sub-section (4) of the said section, the Delimitation Act, 2002 shall be deemed to have been amended as provided below: (a) in section 2(f), the words “but does not include the State of Jammu and Kashmir” shall be omitted; and (b) for the purpose of delimitation of Assembly and Parliamentary Constituencies, the words and figure “census held in the year 2001”, wherever occurring, shall be construed as words and figure “census held in the year 2011”. (3) Readjustment of the constituencies as provided under section 11 in the successor Union territory of Jammu & Kashmir into Parliamentary Constituencies, shall be carried by the Delimitation Commission, to be constituted under the Delimitation Act, 2002 as amended by this Act, and shall take effect from such date as the Central Government may, by order, published in the Official Gazette, specify.
However, sub-section (2) of Section 62 provides that the readjustment of the constituencies as provided under Section 60 in the successor Union Territory of J & K into assembly constituencies shall be carried out by the Delimitation Commission to 35 be constituted under the Delimitation Act, 2002 as amended by the J&K Reorganisation Act. However, 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 sub-section (1) of Section 60 shall be carried out by the Delimitation Commission. (2) Subject to the provisions of sub-section (1) and any other law for the time being in force, the Commission shall readjust the division of each State into territorial constituencies for the purpose of elections to the House of the People and to the State Legislative Assembly on the basis of the census figures as ascertained at the census held in the year [2001]: Provided that where on such readjustment only one seat is allocated in the House of the People to a State, the whole of that State shall form one territorial constituency for the purpose of elections to the House of the People from that State.” Delimitation of constituencies.— (1) The Commission shall, in the manner herein provided, then, distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State as readjusted on the basis of 1971 census to single-member territorial constituencies and delimit them on the basis of the census figures as ascertained, at the census held in the year [2001], having regard to the provisions of the Constitution, the provisions of the Act 37 specified in section 8 and the following provisions, namely:— (a) all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries of administrative units, facilities of communication and public convenience; (b) every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency; (c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large; and (d) constituencies in which seats are reserved for the Scheduled Tribes shall, as far as practicable, be located in areas where the proportion (2) The Commission shall— (a) publish its proposals for the delimitation of constituencies, together with the dissenting proposals, if any, of any associate member who desires publication thereof, in the Gazette of India and in the Official Gazettes of all the States concerned and also in such other manner as it thinks fit; (b) specify a date on or after which the proposals shall be further considered by it; (c) consider all objections and suggestions which may have been received by it before the date so specified, and for the purpose of such consideration, hold one or more public sittings at such place or places in each State as it thinks fit; and (d) thereafter by one or more orders determine— (i) the delimitation of parliamentary constituencies; and (ii) the delimitation of assembly constituencies, of each State.”
(emphasis added) As noted earlier, by virtue of clause (b) of sub-section (1) of Section 62 of the J&K Reorganisation Act, the year 2001 appearing in 38 sub-section (1) of Section 9 of the Delimitation Act, 2002 will have to be read as 2011. Therefore, the Delimitation Commission established under the Order dated 6 March 2020 had to undertake the exercise of delimitation or readjustment on the basis of the census figures of 2011 as the earlier exercise of delimitation of the constituencies of the erstwhile State was not made on the basis of the census figures of 2011.
Thus, 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 by virtue of Section 11 as provided in the Second Schedule. Sub-section (3) of Section 62 provides that readjustment of the constituencies as provided in Section 11 in the successor Union Territories into Parliamentary Constituencies shall be carried out by the Delimitation Commission. In exercise of 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 delimitation of Assembly and Parliamentary constituencies in the Union territory of Jammu & Kashmir and the States of Assam, Arunachal Pradesh, Manipur and Nagaland, consisting of the following member, namely:- (i) Justice (Retd.)
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Ranjana Prakash Desai – Chairperson (ii) Shri Sushil Chandra, Election Commissioner – Member, (ex officio) (iii)The State Election Commissioner of the concerned State of Union Territory appointed under clause (1) of article 243K or under clause (1) of article 243L of the Constitution, as the case may be. Moreover, the readjustment was necessary to be made on the basis of the census figures of the 2011 census as contemplated by Section 4 and sub-section (1) of Section 9 of the Delimitation Act, 2002 as amended by clause (b) of sub-section (1) of Section 62 of the J&K Reorganisation Act. Till 31 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. While amending Section 2(f) of the Delimitation Act by the J&K Reorganisation Act, sub-section (6) of Section 10 has not been amended for enlarging the period provided thereunder. If it is held that due to the failure of the legislature to modify the time limit provided in sub-Section (6) of Section 10 of the Delimitation Act, 2002, the Central Government is powerless to appoint a Delimitation Commission for the newly created Union territory, the provisions of Section 62 of the J&K Reorganisation Act will be rendered nugatory.
Article 4 of the Constitution permits the Parliament to incorporate such provisions in the law made in accordance with Article 3 for the formation of new States and Union territories, which may be necessary to give effect to the provisions of the law. Another challenge which is seriously pressed is to that part of the second impugned notification dated 31 March 2021 by which the States of Arunachal Pradesh, Assam, Manipur and Nagaland were excluded from the purview of the Delimitation Commission constituted under the notification dated 6 March 2020. Though these four States were a part of the notification dated 6 March 2020, it is stated in the letter dated 22 February 2021 that there were number of petitions pending in this Court as well as in the Manipur High Court concerning delimitation exercise in North-Eastern States and that in the Court cases, discrepancies in census figures of 2001 in relation to these States were pointed out.
The term of the Chairman of the Delimitation Commission constituted under the first impugned notification dated 6 march 2020 was to expire on 5 March 2021. The learned counsel appearing for the petitioners did not dispute that the draft order of delimitation was issued on 14 March 2022. In fact, the learned Solicitor General by relying upon a decision of the Constitution Bench in the case of Megharaj Kothari urged that the 48 intention of the legislature is that once an order passed by the Delimitation Commission is published in accordance with sub-Section (1) of Section 10, the same are treated as law, which cannot be questioned in any Court. Article 81 deals with the composition of the House of the People; Article 82 deals with the readjustment and allocation of seats of the House of Parliament after the census and Article 170 deals with legislatures of the States. In any case, even assuming that Article 332 can be applied to the reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislatures of Union territories, it is not shown how the act of increasing the total number of seats in the legislature will offend Article 332, so long as the reservation is maintained as per the formula provided under Article 332. To its application to the Union territory of J & K, the year 2001 in sub- section (1) of Section 9 of the Delimitation Act, 2002 has been substituted by the year 2011 and therefore, distribution of seats in the House of the People and seats assigned to the Legislative Assembly will have to be readjusted on the basis of 2011 census and the 51 delimitation will have to be carried out on the basis of the figures of the census held in the year 2011. Therefore, the exercise of delimitation/readjustment of the seats in the Union Territory of J & K was required to be made by the Delimitation Commission on the basis of the figures of the 2011 census.
A vague attempt was made by the learned senior counsel appearing for the petitioners to submit that the exercise which is undertaken for the newly created Union territory of J & K was not 52 undertaken on the basis of the Uttar Pradesh Reorganisation Act, 2000 and Andhra Pradesh Reorganisation Act, 2014. 53……………………….J.
Case Title: HAJI ABDUL GANI KHAN Vs. UNION OF INDIA (2023 INSC 124)
Case Number: W.P.(C) No.-000237 / 2022
