Centre defends redrawing J&K seats, tells Supreme Court 2019 law empowers it

Opposing a plea challenging constitution of the Commission, Solicitor General Tushar Mehta told a bench of Justices S K Kaul and A S Oka that the 2019 law does not preclude establishment of Delimitation Commission by the Centre and provides for two alternative mechanisms to carry out delimitation for J&K.

The bench on Thursday reserved its verdict.

The petitioners — Haji Abdul Gani Khan and Mohammad Ayub Mattoo — had argued that under the 2019 Act, only the Election Commission is empowered to conduct the delimitation exercise.

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Countering this, 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,” he said.

Mehtra submitted that the 2019 law says “…delimitation of constituencies may be determined by the Election Commission” and that the “readjustment of constituencies…shall be carried by the Delimitation Commission…”.

Using the expression ‘may’ “signifies a non-mandatory responsibility/power of the Election Commission to carry out delimitation and…usage of the expression ‘shall’ confers mandatory responsibility on the Delimitation Commission to carry out the delimitation”.

The petitioners had also argued that delimitation cannot be carried out on the basis of the 2011 Census but must be carried out as per 2001 Census or await “the first Census after 2026.”

Mehta, however, said “the government’s idea was to immediately give democracy to the newly formed Union Territory… For that to wait till 2026, or to do it as per 2001, was found to be legislatively unwise.”

Urging the top court to dismiss the plea, the Centre said that if the prayers 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.