SC confirms validity of J&K Delimitation Commission, apprehensions remain

As the Supreme Court dismisses a plea against the controversial Delimitation Commission, larger questions on the reading down of Article 370 of the Constitution remain to be answered.

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THE Supreme Court found "absolutely no merit" in the petition against the constitution of the Jammu and Kashmir (J&K) Delimitation Commission for the readjustment of constituencies in the Union territory. The judgment, delivered on Monday, is not likely to allay the apprehensions of those in the J&K who believe that the exercise was undertaken with an aim to benefit the Bharatiya Janata Party (BJP) and its allies in future elections.

In a judgment authored by Justice A.S. Oka and supported by Justice S.K. Kaul, the court dismissed a petition filed by two Srinagar-based residents, Haji Abdul Gani Khan and Mohammad Ayub Mattoo under Article 32 of the Constitution, which it said contained "wide and sweeping prayers".

The court held that the Delimitation Commission was legally constituted under the Delimitation Act, 2002, as amended by the Jammu and Kashmir Reorganisation Act, 2019, Section 60 of which provides for the delimitation of constituencies.

An unjustified challenge

The petitioners had challenged the legality of the constitution of the Delimitation Commission on three aspects.

The first challenge was to the constitution of the Delimitation Commission under the notification dated March 6, 2020, a second to the modification of the notification excluding the states of Arunachal Pradesh, Assam, Manipur and Nagaland from the purview of the Delimitation Commission, and a third to the provision of the J&K Reorganisation Act on the increase in the number of seats in the Legislative Assembly of the Union territory of J&K.

The Supreme Court on Monday rejected all three challenges, noting that in absence of a challenge to the provisions of the J&K Reorganisation Act, which formed the primary basis for the delimitation exercise, the court cannot hold the exercise constitutionally invalid. The Act was instrumental for the exercise since it extended the operation of the Delimitation Act to the Union territory of J&K.

The court cannot interfere with a law made by the Parliament unless "it is specifically challenged by incorporating specific grounds of challenge", Justice Oka writes in the judgment, adding further that, "The reason is that there is always a presumption of the constitutionality of laws."

The concept of presumption of constitutionality implies that where the validity of a law is being tested and two interpretations emerge from its reading — one that confirms the validity and one that doesn't — the former must be preferred, and the validity upheld.

The court clarified that the findings rendered in the judgment had been made considering the 2019 abrogation of Article 370 as valid, while also recognising that petitions against it are currently pending before a Constitution bench of the Supreme Court.

In their petition, the petitioners had contended that only the Election Commission of India (ECI) possessed the power to undertake the exercise of redrawing constituencies, citing a 2008 order of the ECI. The court rejected this contention too.

Echoing the argument made by the Union government that the petition suffers from an undue delay, the court decried the filing of the petition challenging a March 2020 notification only by March 2022 and that by the time the petition was filed, a draft order by the Commission had already been published.

Abrogation and beyond

A few months into the abrogation of Article 370 and the enactment of the Reorganisation Act, a Delimitation Commission headed by former Justice Ranjana Prakash Desai was notified. The commission was tasked with redrawing the Parliamentary and Assembly constituencies in Jammu and Kashmir.

Since its inception, there have been apprehensions among sections of people in J&K that the real intention behind the exercise was to alter the boundaries of the Legislative Assembly seats in a way that could benefit the BJP and its allies in future Assembly elections.

There are also connected concerns that one of the covert objectives of the BJP's push for this exercise is to polarise the electorate before the next Assembly elections. The BJP has maintained that the Commission worked in a "transparent, unbiased manner".

Also read: Rationality is missing in delimitation exercise in Jammu and Kashmir: M.Y. Tarigami

In May 2022, the Commission released its final delimitation report, stipulating the creation of six additional Assembly segments for the Hindu-majority Jammu region and only one for Muslim-majority Kashmir region. The total seats in the assembly have risen to 114 seats, of which 24 seats are designated for areas that fall in Pakistan-administered Kashmir.

The region of J&K has not voted in a Legislative Assembly election since November 2014. In November 2018, President's rule was imposed in the erstwhile state after the BJP broke off its alliance with the J&K Peoples Democratic Party. In August 2019, the special status of the erstwhile state was withdrawn, and the state divided into two Union territories: Jammu and Kashmir, and Ladakh.

The next assembly election is speculated to be conducted this year to elect 90 members.

Click here to view the Supreme Court's full judgment.