Two J&K Residents Challenge Delimitation Exercise, File Writ Petition in Supreme Court of India

The plea states that the action of the government of India in issuing the notifications for the Delimitation of Assembly Constituencies for Jammu and Kashmir was without jurisdiction as it usurped the jurisdiction of The Election Commission of India.

NEW DELHI — Two residents of Jammu and Kashmir have challenged the March 2020 decision of the government of India to appoint a Delimitation Commission to redraw Lok Sabha and assembly constituencies of the erstwhile state and have filed a writ petition before the Supreme Court.

The plea has been moved by Haji Abdul Gani Khan and Dr. Mohammad Ayub Mattoo seeking a declaration that the constitution of the Delimitation Commission u/s 3 of the Delimitation Act, 2002, is without power, jurisdictions, and authority, Live Law reported.

The plea has been filed through M/S LAWFIC and it has been drawn by Senior Advocate Ravi Shankar Jandhyala.

The plea states that the action of the government of India in issuing the notifications for the Delimitation of Assembly Constituencies for Jammu and Kashmir was without jurisdiction as it usurped the jurisdiction of The Election Commission of India.

The plea questions as to when Art. 170 of the Constitution of India provides that the next delimitation in the country will be taken up after 2026, then Jammu and Kashmir had been singled out.

In this regard, the plea further argues that any move to increase the number of seats in Jammu and Kashmir must be preceded by a Constitutional Amendment, besides the amendment of Elections Laws, namely, the Delimitation Act, 2002 and the Representation of People Act, 1950.

“When the last Delimitation Commission was set up on 12th July 2002, in exercise of powers conferred by section 3 of the Delimitation Act, 2002, after the 2001 Census to carry out the exercise throughout the country, Delimitation Commission had issued Guidelines and Methodology for the Delimitation of Assembly and Parliamentary Constituencies vide Letter No. 282/DEL/2004 dated 5th July 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 states.

Significantly, the plea also states that the increase in the number of seats from 107 to 114 (including 24 seats in Pakistan Administered Kashmir) in Jammu & Kashmir, as provided in the J&K Reorganisation Act, 2019, is ultra vires the Constitutional Provisions such as Articles 81, 82, 170, 330 and 332 and the Statutory Provisions particularly Section 63 of the Jammu & Kashmir Reorganisation Act, 2019.

Referring to the decision of the Government of India to constitute the Delimitation Commission to take up delimitation in the UT of J&K and states of Assam, Arunachal Pradesh, Manipur, and Nagaland, the petitioners have called it violative of Art 14 by averring that the Government’s order speaks of two different population ratios.

“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 are to be done on the basis of the 2001 population. This is unconstitutional, violates Art 14, as it attracts Classification,” the plea states.

In this regard, the plea also states that the order of the Central Government of March 3, 2021, omitting the names of states of Assam, Arunachal Pradesh, Manipur, and Nagaland from the process of delimitation and deciding to conduct delimitation only for the Union Territory of Jammu & Kashmir is unconstitutional as it amounts to ”classification”.

The plea also states that it is only the Election Commission that must carry out the process of delimitation (for necessary update) 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. 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,” the plea concludes by averring thus.