CAUSE TITLE:
Haji Adbul Gani Khan And Anr. v. Union of India And Ors
DATE OF ORDER:
February 13, 2023.
JUDGE(S):
HONOURABLE MR. JUSTICE ABHAY S. OKA
PARTIES:
Petitioner: Haji Adbul Gani Khan And Anr
Respondent: Union of India and Ors.
SUBJECT:
The Hon’ble Supreme Court (hereinafter referred to as ‘Supreme Court’ or ‘the Court’), has rejected a plea that contested the process used to redraft the Jammu and Kashmir Union Territory's Legislative Assembly and Lok Sabha districts.
IMPORTANT PROVISIONS:
Delimitation Act, 2002
- Section 3 – provision of the readjustment of the seats in the legislative Assembly
- Section 10 – states the power of the commission to publish order and the operation date.
- Section 11 – states the power of the election commission to keep the order up to date regarding the delimitation
Jammu and Kashmir Reorganisation Act, 2019
- Section 63 states the unique rules regarding the redistribution of Assembly and parliamentary districts.
The Constitution of India 1949
- Article 170 – states the composition of legislative assemblies.
- Article 370 – specifies the framing of temporary provisions with respect to the state of Jammu and Kashmir.
BRIEF FACTS:
- An order was issued with regards to article 370(1) of the Indian Constitution, stating that each and every provision shall be applicable to Jammu and Kashmir with respect to Article 367 of the Indian Constitution.
- Accordingly clause (2) was added stating ‘constituent assembly of the state’ and clause (3) stating ‘legislative assembly of the state’.
- President of India on 6th August 2019 declared that all the clause will be in operation.
- J&K Act was enacted recognising both the territories individually on 31st October 2019 whereby according to section 13 of Act, Article 239A will be applicable to J&K and the parliament acquired the power to enact legislation on the territory.
- Accordingly the Delimitation Act, 2002 became applicable under the virtue of section 62 of the J&K Act.
- On March 6th 2020 under section 3 of the Delimitation Act, 2002 the central government formed delimitation commission.
- Two notices were served one on 6th March 2020 and second on 3rd march 2021 regarding the amendment of the commission by deleting the states of AP, Assam, Manipur and Nagaland. Along with this, the time period of the chairperson was also extend by two years. Following this in another notice the time period was extended by two more months.
- With the understanding of the section 60(1) of the J&K Act the number of sets with regards to the Legislative Assembly can be increased from 107 to 117, and section 14(4) of the Act stats that 24 seats in the Legislative Assembly should be vacant and it should be taken into consideration at the time of revoking the membership of the assembly.
- The purpose of the writ petition filed under Article 32 of the Indian Constitution is to contest the constitutionality and relevance of the action of establishing a Delimitation Commission for the Union Territory of Jammu and Kashmir in accordance with the Delimitation Act, 2002, and the delimitation practise conducted by the Commission.
QUESTIONS RAISED:
- Whether increase in the number of seats with regards to AP Regulation Act 2014 is admissible in Telangana and Andhra Predesh Assemblies?
- Whether there is any violation of Section 63 of the Jammu and Kashmir Reorganisation Act, 2019 and Article 81, 82, 170, 330 and 332 of the Constitution with respect to increase in the number of seats.
ARGUMENTS ADVANCED BY THE PETITIONER
- It has been said by the council that in particular, Article 170(3) of the Indian Constitution, which had suspended delimitation until the very first census after 2026, was violated by the delimitation process.
- It was further argued that no additional delimitation operation could have been carried out following the passage of the delimitation decree in the year 2008.
- The council stressed that beginning in 2008, the Election Commission, not a Delimitation Commission, is the only entity authorised to conduct any delimitation-related activities. It was argued that Jammu and Kashmir being singled out is in violation of article 14 of the Indian Constitution.
- The Delimitation notice stating the delimitation to be conducted on the bases of 2011 census was irregular as no such statistics were recorded in 2011. Also, the Delimitation Commission was not under the authority under section 9(1) (b) of the Representation of People Act 1950 and section 11(1) (b) of Delimitation Act 2022.
- It had also been noted that the Electoral Commission had been given additional tasks related to delimitation following the delimitation decision of 2008. The Electoral Commission, council claimed, had neglected its responsibilities with respect to such task.
- It claimed that because the Commission was dissolved in 2007 and the Delimitation of Legislative and Assembly Constituencies Order were subsequently issued in 2008, the Delimitation Commission cannot be formed under Section 3 of the Delimitation Act 2002. The election commission, therefore, is unable to complete the task at this time.
- Therefore, it is not only random but also a violation of the Constitution's fundamental principles to enforce the delimitation procedure in UT of J&K.
ARGUMENTS ADVANCED BY THE RESPONDENT
- It has been argued that The Jammu and Kashmir Reorganization Act, 2019 statute's constitutionality has not been contested in the appeal. Additionally, the aforementioned clause did not follow either the constitutional structure or one another.
- It had been contended that the lawmakers meant a Delimitation Commission, not the Election Commission, which itself is occupied with conducting elections across the nation, to carry out the initial delimitation.
- As shown by the second notice, in which the Central Government withdrew delimitation for the States of Assam, Arunachal Pradesh, Manipur, and Nagaland, it was also claimed that Jammu and Kashmir was singled out for the delimitation operation.
- The council clarified that the north-eastern States were left out of the notice because there were domestic disturbances there.
ANALYSIS BY THE COURT:
- It was order by the court that the complete number of slots in the Legislative Assemblies of all States, including UT of NCR and Pondicherry, were based directly on the 1971 census, which was to remain unchanged until the first census to be obtained after the year 2026, according to the Regulations and Procedure for the Delimitation of Assembly and Parliamentary Constituencies issued on 2004.
- Assam, Arunachal Pradesh, Manipur, and Nagaland were removed from the scope of the aforementioned notice, and the Delimitation Commission was given a one-year extension. By means of another notification, the Delimitation Commission's tenure was further prolonged on February 21, 2012, past the date of March 6, 2012, by an additional two months.
CONCLUSION
In the above case The Election Commission's counsel claimed that there was sufficient opportunity for voicing complaints regarding the rise in the number of seats, but that opportunity was not used and that the delimitation order now has legal standing.
The Election Commission has the authority to revise the Delimitation order by making the required adjustments in light of later events, but this authority is not allowed to alter the borders, regions, or length of any district without prior notice.
The Union Government stated that until 2026 nothing could be changed in light of Article 170(3) of the Constitution when a Member of Parliament asked when the seats in Andhra Pradesh would be expanded under the AP Reorganisation Act on the floor of the Lok Sabha.
Click here to download the original copy of the judgement
