SC junks challenge to Jammu & Kashmir delimitation: What did the petitioner, Centre argue?

A challenge to the 2019 Act is pending before the apex court, along with a batch of other petitions challenging the abrogation of Article 370 of the Constitution in August 2019.

Delimitation is the act of redrawing boundaries of an Assembly or Lok Sabha seat to represent changes in population over time. A commission set up by the Central government submitted its final report for delimitation in J&K on May 5 last year.

Arguments of the petitioner

The petition filed by Abdul Gani Khan and Muhammad Ayub Matto had challenged a notification for the delimitation of Assembly and parliamentary constituencies in J&K. (‘Haji Abdul Gani Khan and Another v. Union of India and Others’).

The petition contended that after the notification of the Parliamentary and Assembly Constituencies Delimitation Order, 2008, only the Election Commission of India could have undertaken the exercise.

It also contended that the delimitation exercise was against the provisions under Article 170 of the Constitution, under which constituencies as delineated now shall remain frozen till the first census conducted after the year 2026.

It has been recommended that the number of seats in the J&K Assembly should be raised from 83 to 90. The petition challenged the increase in seats on grounds of it being in violation of the provisions of Articles 81, 82, 170, 330, and 332 of the Constitution, and Section 63 of the Jammu & Kashmir Reorganisation Act, 2019.

On December 1, 2022, the apex court reserved its judgment on the plea.

Arguments of the Centre

On the claim that only the Election Commission is empowered to conduct the delimitation exercise, the Centre stated that the J&K Reorganisation Act of 2019 mandates the setting up of a commission for the exercise.

On behalf of the Centre, Solicitor General Tushar Mehta said, “Sections 61 and 62 of 2019 Act do not preclude the establishment of Delimitation Commission by the Central Government under Section 62 of the Act. By virtue of Sections 60-61, while the power to determine delimitation is conferred on Election Commission, Section 62(2) and 62(3) confers powers to carry out delimitation on the Delimitation Commission constituted under Section 3 of Delimitation Act.”

Sections 61 and 62 of the J&K Reorganisation, 2019 deal with the “Power of Election Commission to maintain Delimitation Orders up-to date” and the “Special provision as to readjustment of Parliamentary and Assembly Constituencies on the basis of 2011 census” respectively.

Mehta argued that the use of the word “shall” in these provisions indicated a mandatory responsibility on the Delimitation Commission to carry out the delimitation.