The delimitation exercise for Jammu and Kashmir (J&K) could not wait till 2026 since the idea was to give immediate democracy to the newest Union Territory (UT).
The Union government told the Supreme Court on Thursday, justifying the act of redrawing poll constituencies in J&K and increasing the tally of assembly seats from 83 to 90 following the effective abrogation of Article 370 in 2019.
Under the amended Article 82 of the Constitution, 2026 is the year for delimitation to readjust seats in the Lok Sabha to the states and the division of each state into territorial constituencies.
“The last delimitation had taken place in 1995. We don’t want to point out what went wrong at that time since it is not a matter being argued currently. But the government’s idea was to give immediate democracy to J&K. To wait till 2026 was legislatively found to be unwise,” solicitor general Tushar Mehta told a bench, led by justice Sanjay Kishan Kaul, which reserved its judgment on a challenge to the delimitation exercise.
The SG, arguing before the bench which also comprised justice AS Oka, added that the delimitation exercise for J&K also took into account the aspect that the region could regain its statehood. “That option is still open,” said the law officer representing the Centre.
In August 2019, Parliament passed laws effectively doing away with the special status granted to J&K, and split the region into two Union Territories — J&K, with a legislature, and Ladakh, without. The delimitation commission, which comprised former Supreme Court judge Ranjana Prakash Desai, then 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.
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 reference to 2026 came up as the petition filed by two Srinagar-residents Haji Abdul Gani Khan and Mohammad Ayub Mattoo complained that the delimitation exercise for J&K could have waited till 2026 when the delimitation of Lok Sabha constituencies has to be done on the basis of the 2021 census. The two, in their petition filed through advocate Sriram P, also questioned the legality of the delimitation exercise conducted in terms of the notifications issued in 2020, 2021 and 2022, arguing that only the Election Commission was authorised to carry out this exercise.
Responding to this, the SG said that the scheme of the 2019 J&K Reorganisation Act, read with 2002 Delimitation Act, is that the first delimitation is to be done by a delimitation commission, which is a temporary body, and the subsequent redrawing can be carried out by EC.
“The intention is that first delimitation is not by the Election Commission which is busy holding elections throughout the country. The first delimitation is to be done by the delimitation commission and then it can be done by EC. This is temporary exigencies being taken care of. There is no dichotomy between the exercise to be conducted by EC or delimitation commission inter-se or with any other constitutional provision,” contended Mehta, adding all procedural compliances were also met in carrying out the exercise.
Asserting that orders of the delimitation commission cannot be legally challenged once they are published in the Gazette of India, Mehta said that the law is clear that petitioners cannot maintain their writ petition against the J&K delimitation. “In view of the fact that the orders of the delimitation commission have been published and have also taken effect, the same cannot be challenged in any court of law as per the 2002 Delimitation Act,” he argued. The SG added that any adverse order would also be violative of Article 329 of the Constitution which details out the bar to interference by courts in electoral matters.
Mehta’s submissions in this regard were supported by EC too. Advocate Amit Sharma, appearing for EC, told the bench that after publication of the delimitation order in the Gazette, they have acquired the “force of law”.
Countering these submissions, senior advocate Ravi Shankar Jandhyala, representing Khan, claimed that the Centre had no power to set up the delimitation commission. He also said that the Union government discriminated against J&K by not waiting till 2026 and the 2021 census.
At an all-party meeting in June last year, Prime Minister Narendra Modi told leaders of J&K’s political parties that statehood would be restored after fresh elections are held in the region, on the basis of the delimitation process. But many 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. The last assembly polls in J&K were conducted in 2014.