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Tuesday, September 27, 2022

Two Kashmiris move SC against controversial delimitation exercise

A plea has been moved in the Supreme Court by two Kashmir residents challenging the Centre’s decision to constitute the delimitation commission for redrawing the assembly and Lok Sabha constituencies in the Union Territory of Jammu and Kashmir.

The plea filed by Srinagar residents Haji Abdul Gani Khan and Dr. Mohammad Ayub Mattoo sought a declaration that the increase in the number of seats from 107 to 114 (including 24 seats in Pakistan Occupied Kashmir) in Jammu & Kashmir is Ultra vires the Constitutional Provisions such as Articles 81, 82, 170, 330 and 332 and Statutory Provisions, particularly under Section 63 of the Jammu & Kashmir Reorganisation Act, 2019.

The plea said that if August 5, 2019, was to unite the Jammu and Kashmir State with India, then the delimitation process defeats the “new order” of “One Nation One Constitution” in the country.

It said that while Article 170 of the Constitution of India provides that the next delimitation in the country will be taken up after 2026 then why has the UT of Jammu and Kashmir been singled out? The plea said that the last Delimitation Commission was set up on July 12, 2002, in the exercise of powers conferred by Section 3 of the Delimitation Act, 2002, after the 2001 Census to carry out the exercise throughout the country and the commission had issued guidelines and methodology for the Delimitation of Assembly and Parliamentary Constituencies vide letter dated July 5, 2004, along with the Constitutional and Legal Provisions.

“It clearly stated that the total number of existing seats in the Legislative Assemblies of all states, including UTs of the National Capital Region and Pondicherry, as fixed based on the 1971 census shall remain unaltered till the first census to be taken after the year 2026”, the plea settled by senior advocate Ravi Shankar Jhandhyala said.

It sought to declare the notification dated March 6, 2020, constituting the delimitation commission to take up delimitation in the UT of J&K and states of Assam, Arunachal Pradesh, Manipur, and Nagaland by the Centre and consequential omission of Assam, Arunachal Pradesh, Manipur and Nagaland from the process of delimitation vide., notification dated March 3, 2021, and conducting delimitation only for Union Territory of Jammu & Kashmir is unconstitutional as it amounts to classification and violates Article 14.

On March 6, 2020, the Union Government, Ministry of Law and Justice (Legislative Department) had issued a notification in exercise of power under Section 3 of the Delimitation Act, 2002, constituting a Delimitation Commission, with former Supreme Court judge (Retd) Ranjana Prakash Desai as Chairperson, for the purpose of delimitation of Assembly and Parliamentary constituencies in the Union Territory of Jammu and Kashmir and the state of Assam, Arunachal Pradesh, Manipur, and Nagaland, for a period of one year.

The plea said the notification has been speaking of two different population ratios as the delimitation in ”UT of J&K” is to be done on the “basis of the 2011 population” while the delimitation in the “four states of the North East” is to be done on the “basis of the 2001 population” which is “unconstitutional, violates Article 14 and attracts classification”.   “In fact, in the State of Jammu and Kashmir, the census operation was completed in 2001, but the delimitation was done in 1995. Even on this count, the entire process adopted is unconstitutional as there is no population census operation during 2011 at all for Jammu and Kashmir”, it said.

The petitioners further sought a declaration that the action of the Centre in issuing the notifications dated March 6, 2020, March 3, 2021, and February 21, 2022, for the delimitation of assembly constituencies for the UT of Jammu & Kashmir is without jurisdiction and nothing but a usurpation of the jurisdiction of Election Commission of India.

The plea sought a stay of the three notifications saying they are in utter violation of statutory provisions particularly Section 63 of Jammu and Kashmir Re-organisation Act-2019 pending disposal of the present writ petition.

It said the constitution of the delimitation commission under section 3 of the Delimitation Act, 2002, which has become inappropriate by the year 2007 ”when the Commission was wound up” and after which the delimitation order was issued in 2008 by duly following the procedure, the issuance of these three notifications concerning Jammu and Kashmir are without power, jurisdictions, and authority of the Centre, Union law ministry and the Election Commission of India.   “According to Election Laws, it is only the Election Commission that must carry out the process of delimitation (necessary updation) after the Parliamentary and Assembly Constituencies Delimitation Order, 2008 is notified. Nobody is competent to carry out the delimitation process since the delimitation has been completed and the Delimitation Commission itself has become inappropriate,” it said.

The plea added that the issuance of notification by the Law and Legislative Department appointing the Delimitation Commission is without jurisdiction, unconstitutional, and ultra vires to the election laws apart from J&K Reorganisation Act, 2019.

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