The Home Ministry and the Election Commission of India (ECI) have found themselves on the same page in the Supreme Court, both agreeing that delimitation orders notified in the official gazette, redrawing Assembly and Lok Sabha constituencies in the Union Territory of Jammu and Kashmir following the abrogation of Article 370, have acquired the “force of law”.
The government and the top poll body were responding to a petition filed by Srinagar residents, Haji Abdul Gani Khan and Dr. Mohammad Ayub Mattoo, challenging the constitution of the Delimitation Commission on March 6, 2020.
The petition had also sought a judicial declaration that the increase in the number of Assembly seats from 107 to 114 (including 24 seats in Pakistan-occupied Kashmir) in Jammu and Kashmir was unconstitutional and ultra vires the Jammu and Kashmir Reorganisation Act, 2019.
The plea said that if August 5, 2019 was to unite the Jammu and Kashmir State with India, then the delimitation process had defeated the “new order” of “One Nation One Constitution”. The petitioners had questioned why Jammu and Kashmir was “singled out” for delimitation when Article 170 of the Constitution had provided that the next delimitation in the country would only be taken up after 2026.
‘Special legislation’
The ECI and the Ministry responded that the petitioners had no jurisdiction even to “comment” on the government’s powers to form the Delimitation Commission. The Centre derived its powers to form, fix the scope and tenure of the Delimitation Commission under Section 3 of the Delimitation Act of 2002, which is a ‘special legislation”.
As regards the increase in the Assembly seats, the ECI and the government said the order of the Delimitation Commission was already notified on May 5, 2022 in the gazette. This was followed by public sittings in the Union Territory “to afford full opportunity to members of the public to make oral and written submissions to the Delimitation Commission”.
Subsequently, following the gazette notification, the delimitation order had already been brought into effect from May 20, 2022. The delimitation order cannot be “re-agitated” in a court once it had gained finality by publication in the gazette, the affidavits said.
On March 6, 2020, the Centre had issued a notification constituting a Delimitation Commission chaired by former Supreme Court judge, Justice Ranjana P. Desai, for delimitation of Assembly and Parliamentary constituencies in the Union Territory of Jammu and Kashmir and in Assam, Arunachal Pradesh, Manipur and Nagaland. However, the Centre had issued a second notification on March 3, 2021 restricting the scope of delimitation to Jammu and Kashmir alone.
