Govt to SC: J&K delimitation order final, no contest now

The delimitation commission’s order of redrawing poll constituencies in Jammu and Kashmir and increasing the tally of assembly seats from 83 to 90 has become final, the Centre told SC.

The delimitation commission’s order of redrawing poll constituencies in Jammu and Kashmir and increasing the tally of assembly seats from 83 to 90 has become final after the gazette publication, the Union government has told the Supreme Court, adding there cannot be a judicial review of the exercise at this stage.

Govt to SC: J&K delimitation order final, no contest now

According to an affidavit filed by the Ministry of Home Affairs (MHA), the Delimitation Act of 2002 is clear that once the orders of the commission have been published in the Union Gazette and have taken effect, no legal process can be undertaken to examine its validity or correctness.

“Section 10(2) of the Delimitation Act, 2002 bars the challenge to the orders of the Delimitation Commission once they are published in the Gazette of India,” stated the affidavit, filed in response to a petition that has challenged the validity of the delimitation exercise in the UT.

The plea, filed by Srinagar resident Haji Abdul Gani Khan through advocate Sriram P, questioned the legality of the delimitation exercise conducted in terms of the notifications issued in 2020, 2021 and 2022 on various grounds, including that only the Election Commission was authorised to carry out this exercise and the Centre had to wait till the 2026 Census to conduct any delimitation or readjustment of assembly seats.

Seeking dismissal of Khan’s petition, the Centre’s affidavit stated: “If the prayers of the current petition are allowed, it would lead to an anomalous situation wherein orders of the Delimitation Commission, which attain finality at the time of publishing in the Gazette of India, would be rendered infructuous...the same would also be violative of Article 329 of the Constitution which details out the bar to interference by courts in electoral matters.”

On the challenge with respect to the exclusive authority with EC to carry out the exercise, the Centre pointed out that EC, through a letter dated September 2, 2019, had stated that since the delimitation commission is being constituted under the 2019 J&K Re-organisation read with the 2002 Delimitation Act, there appeared no necessity for any separate action by the statutory body.

“Moreover, the 2002 Act is a special legislation which provides for the establishment of a Delimitation Commission for the purpose of providing for the readjustment of the allocation of seats in the House of the People to the States, the total number of seats in the Legislative Assembly of each State, the division of each State and each Union territory having a Legislative Assembly into territorial constituencies for elections to the House of the People and Legislative Assemblies of the States and Union territories and for matters connected therewith,” added the affidavit.

The Union government argued that the 2019 Act provides for two alternative mechanisms to carry out delimitation for the UT of J&K — first, by EC and second, by the delimitation commission, adding there was no legal bar to set up a commission in 2020 for redrawing constituencies in J&K after the winding up of the 2002 delimitation commission.

About the petitioner’s contention against bifurcation of the state of J&K into UTs of J&K and Ladakh, the Centre maintained that the division was duly ratified by both House of the Parliament through the passage of the 2019 Act. “The Parliament considered it necessary to take this measure in the larger interest of Jammu, Kashmir and Ladakh,” it said.

A bench, led by justice Sanjay Kishan Kaul, is expected to hear the matter next on September 29. On August 30, the top court had pulled up the Centre over the delay in submitting its response to Khan’s petition, and gave it a week to do so. The court had on May 13 issued notices to the Centre, the J&K administration and EC.

On May 5, the three-member delimitation commission finalised the UT’s new electoral map, marking the first step for elections in the region since its special status was scrapped in August 2019. In its final order, the commission earmarked 43 seats to the Hindu-majority Jammu region and 47 to Muslim-majority Kashmir – making up a total of 90 seats for the Union territory’s assembly, up from the current strength of 83.

Out of the seven new seats added, six were allotted to Jammu and one to Kashmir. Earlier Jammu had 37 seats and Kashmir 46. This brings the Kashmir representation down to 52.2% from 55.4% of the total seats, and takes the Jammu representation up to 47.8% from 44.6%. The exercise was carried out on the basis of 2011 Census, which put the population of J&K at 12.5 million, with 56.2% in Kashmir and 43.8% in Jammu.

The delimitation commission, which comprises former Supreme Court judge Ranjana Prakash Desai, chief election commissioner Sushil Chandra and chief electoral officer of J&K KK Sharma, was set up in March 2020 with five parliamentarians from the UT as associate members.

J&K lost its special status and statehood on August 5, 2019, when the Centre moved to void Article 370 of the Constitution. At a landmark all-party meeting in June last year, Prime Minister Narendra Modi told leaders of political parties that statehood will be restored after fresh elections are held in the region, on the basis of the delimitation process.

But parties from the region, which remained bitterly opposed to the scrapping of its special status, want statehood to be restored before delimitation and elections – a demand rejected by the Centre. Assembly seats in the erstwhile state of Jammu and Kashmir were last redrawn in 1995, based on the 1981 Census.