On March 6, 2020, the Union Ministry of Law and Justice had issued a notification in exercise of powers vested in it under Section 3 of the Delimitation Act, 2002 for constituting a Delimitation Commission for the Union Territory of Jammu and Kashmir and former Supreme Court Judge Ranjana Prakash Desai was appointed as its chairperson. The constitution of such a commission and the exercise of delimitation of Assembly constituencies undertaken by it on the basis of the 2011 Census was challenged in Supreme Court. The Supreme Court on February 13 this year dismissed the plea.

While seeking dismissal of the plea, Solicitor General of India Tushar Mehta, who was appearing for the Centre, argued in favour of a Delimitation Commission and said the Jammu and Kashmir Reorganisation Act, 2019 does not preclude establishment of a Delimitation Commission. The court found “absolutely no merit in any of the contentions raised by the petitioners”. The court relied its findings with reference to the J&K Reorganisation Act and further clarified that its “findings…are on the footing that the exercise of power made in the year 2019 under clauses (1) and (3) of Article 370 of the Constitution is valid”.

The Bench of Justices SK Kaul and AS Oka said, “We are aware that the issue of the validity of the exercise of the said powers is the subject matter of petitions pending before this Court. Therefore, we have not dealt with the issue of validity. Nothing stated in this judgment shall be construed as giving our imprimatur to the exercise of powers under Clauses (1) and (3) of Article 370 of the Constitution.”

The petitioners Haji Abdul Gani Khan and Mohammad Ayub Mattoo, who are residents of Srinagar, argued against delimitation to be carried out on the basis of the 2011 Census and, instead, argued for carrying out delimitation as per the 2001 Census or wait for “the first census after the year 2026”. To substantiate their argument, they went on to cite the Delimitation Act, 2002, which says, the “Commission shall readjust the division of each State into territorial constituencies for the purpose of elections to the House of the People and to the State Legislative Assembly on the basis of the census figures as ascertained at the census held in the year (2001)”.

However, the Bench rejected the contention and observed, “What is important to note is that by virtue of the J&K Reorganisation Act, the year 2001 stands substituted by the year 2011 in relation to the Legislative Assembly of the Union Territory of J&K.” Therefore, the court held, “…the Delimitation Commission established under the Order dated 6th March 2020 had to undertake the exercise of delimitation or readjustment on the basis of the census figures of 2011 as the earlier exercise of delimitation of the constituencies of the erstwhile State was not made on the basis of the census figures of 2011”.It further said, “…for the reasons stated above, there is nothing illegal about the exercise of delimitation/ readjustment of the constituencies undertaken by the Delimitation Commission for the purposes of dividing the Union Territory into 90 constituencies on the basis of the 2011 census figures.”

The court upheld the legality of the Centre setting up a Delimitation Commission by notification dated March 6, 2020 and said, “The J&K Reorganisation Act, which created the two new Union Territories, assigns the role of readjustment of constituencies to the Delimitation Commission under the Delimitation Act, 2002.”

The court further said, “Article 4 of the Constitution permits the Parliament to incorporate such provisions in the law made in accordance with Article 3 for the formation of new States and Union Territories, which may be necessary to give effect to the provisions of the law. Such a law may also contain provisions as to representations in Parliament and in the Legislature of the State or States affected by such law. Therefore, such law which made under Article 3 can always provide for readjustment of the Constituencies in the newly constituted States or Union Territories through the Delimitation Commission. Hence, we hold that there is no illegality associated with the establishment of the Delimitation Commission under the impugned Order dated 6th March 2020.”

(The writer is an Addl. Central Government Standing Counsel, CAT, Cuttack Bench, Consulting Editor-Legal Affairs and Public Policy, The Pioneer, Bhubaneswar, and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT University. Views are personal)