REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.237 OF 2022

Haji Abdul Gani Khan & Anr. …Petitioners

v.

Union of India & Ors. ... Respondents

J U D G M E N T

ABHAY S. OKA, J.

1.The main challenge in this writ petition under Article 32 of the

constitution of India is to the legality and validity of the action of

constituting a Delimitation Commission for the Union Territory of

Jammu and Kashmir under provisions of the Delimitation Act, 2002

and the exercise of delimitation undertaken by the Commission.

RELEVANT FACTS

2.The Constitution (Application to Jammu and Kashmir) Order,

2019 bearing C.O. No.272 was issued by the Hon’ble President of

1

India on 5

th

August 2019. The said order was issued in the exercise of

powers conferred by clause (1) of Article 370 of the Constitution of

India. The said order directed that all the provisions of the

Constitution, as amended from time to time, shall apply in relation to

the State of Jammu and Kashmir, subject to modifications made to

Article 367 as set out in the said order. By the said order, Clause (4)

was added to Article 367 providing that the expression “Constituent

Assembly of the State referred to in clause (2)” in the proviso to clause

(3) of Article 370 of the Constitution, shall be read as “Legislative

Assembly of the State”. On 6

th

August 2019, a declaration under

Clause (3) of Article 370 of the Constitution bearing C.O.No.273 was

made by the Hon’ble President of India on the recommendation of the

Parliament, by which it was declared that all the clauses of Article 370

shall cease to be operative.

3.The Jammu and Kashmir Reorganisation Act, 2019 (for short,

‘the J&K Reorganisation Act’) was enacted which provided for the

reorganisation of the State of Jammu and Kashmir by dividing it into

two Union Territories. A new Union Territory of Ladakh was created

comprising territories of Kargil and Leh Districts in the erstwhile State

of Jammu and Kashmir. The Union Territory of Jammu and Kashmir

(for short, ‘the Union Territory of J & K) was formed comprising the

2

existing State of Jammu and Kashmir other than Kargil and Leh

Districts. The J&K Reorganisation Act came into force with effect from

31

st

October 2019. By virtue of Section 13 thereof, Article 239A of the

Constitution of India which was earlier applicable only to the Union

Territory of Puducherry, became applicable to the Union Territory of J

& K. Article 239A confers a power on the Parliament to enact a law for

creating a legislature for the Union Territory.

4.The Delimitation Act, 2002 which was not applicable to the

erstwhile State of Jammu and Kashmir, was made applicable by virtue

of Section 62 of the J&K Reorganisation Act to the newly formed Union

Territory of J&K. On 6

th

March 2020, the Central Government

constituted a Delimitation Commission under Section 3 of the

Delimitation Act, 2002 for the purpose of delimitation of Assembly and

Parliamentary Constituencies in the Union Territory of J & K as well

as the States of Arunachal Pradesh, Assam, Manipur and Nagaland.

The Commission was headed by a retired Judge of this Court. The

Election Commissioner and the State Election Commissioner were

made ex-officio members of the Delimitation Commission. The term of

appointment of the Chairperson was fixed as one year. By a

notification dated 3

rd

March 2021, the earlier notification dated 6

th

March 2020 appointing the Delimitation Commission was amended by

3

deleting the States of Arunachal Pradesh, Assam, Manipur and

Nagaland from the purview of the Delimitation Commission. By the

same notification, the term of the Chairperson was extended to two

years. The notification dated 6

th

March 2020 was further amended by

a notification dated 21

st

February 2022 by providing that the term of

the Chairperson shall be for two years and two months.

5.Sub-Section (1) of Section 60 of the J&K Reorganisation Act

provides that the number of seats in the Legislative Assembly of Union

Territory of J & K shall be increased from 107 to 114. Sub-Section (4)

of Section 14 provides that 24 seats in the Legislative Assembly of the

Union territory of J & K shall remain vacant and shall not be taken

into account for reckoning the total membership of the Assembly.

PLEADINGS

6.Very wide and sweeping prayers have been made in the present

writ petition invoking Article 32 of the Constitution of India. The first

challenge is to the provision regarding the increase in the number of

seats in the Legislative Assembly of Union territory of J & K. The

second challenge is to the modification made of the notification dated

6

th

March 2020 by deleting the States of Arunachal Pradesh, Assam,

Manipur and Nagaland from the purview of the

4

Delimitation Commission. The third challenge is to the constitution of

the Delimitation Commission itself under the notification dated 6

th

March 2020. The challenge is on the ground that after the

Delimitation of Parliamentary and Assembly Constituencies Order,

2008 (for short “the Delimitation Order of 2008”) was issued by the

Election Commission of India, the existing Delimitation Commission

was wound up and therefore, it was inappropriate and illegal to

constitute a new Delimitation Commission. The petitioners contended

that the Delimitation Commission has been appointed under the

notification dated 6

th

March 2020 by usurping the jurisdiction of the

Election Commission of India (for short, ‘the Election Commission) and

therefore, the constitution of the Delimitation Commission was ultra

vires the provisions of sub-Sections (2) and (5) of Section 60 of the

J&K Reorganisation Act. There is also a challenge to the constitution

of the Delimitation Commission on the ground of infringement of

clause (3) of Article 170 as well as Articles 14, 19 and 21 of the

Constitution.

7.We may note here that on 13

th

May 2022, this Court recorded a

submission of Shri Ravi Shankar Jandhyala, the learned senior

counsel appearing for the petitioners that the petitioners are not

seeking to assail abrogation of Article 370 of the Constitution. In view

5

of this statement, this Court observed that certain allegations made on

that behalf in the pleadings are to be ignored. This Court also noted

that the challenge really was to the exercise undertaken in respect of

the delimitation pursuant to the notification dated 6

th

March 2020 as

amended by further notifications dated 3

rd

March 2021 and 21

st

February 2022.

8.A counter affidavit has been filed by the Union of India pointing

out that during the pendency of this writ petition, on 5

th

May 2022, a

notification has been published by the Delimitation Commission in the

exercise of powers under sub-Section (2) of Section 4 and sub-Section

(2) of Section 9 of the Delimitation Act, 2002 containing the order of

the delimitation of Assembly Constituencies of the Union territory of J

& K and Parliamentary Constituencies. It is also pointed out that by a

further order dated 20

th

May 2022, the Central Government exercised

powers under sub-Sections (2) and (3) of Section 62 of the J&K

Reorganisation Act appointing 20

th

May 2022 as the date on which

order dated 5

th

May 2022 issued by the Delimitation Commission shall

come into force. The counter affidavit also notes that earlier, a draft

order was published by the Delimitation Commission on 14

th

March

2022 containing proposals for delimitation of the Constituencies, and

objections and suggestions to it were invited. Copies of the

6

notifications/orders dated 5

th

May 2022 and 20

th

May 2022 have been

placed on record by the Election Commission – Respondent no.5.

There is a rejoinder filed by the petitioners dealing with the counter

affidavits filed by the Union of India and the Election Commission.

SUBMISSIONS OF THE PETITIONERS

9.Shri Ravi Shankar Jandhyala, the learned senior counsel

appearing for the petitioners has made detailed submissions. The

summary of his submissions is as under:

(a) That the 2

nd

proviso to clause (3) of Article 170 of the

Constitution lays down that until the figures for the first

census taken after the year 2026 have been published, it shall

not be necessary to readjust the total number of seats in the

Legislative Assembly readjusted on the basis of the 1971

census and the division into territorial constituencies as may

be readjusted on the basis of 2001 census. The exercise

undertaken of delimitation/readjustment of the Assembly and

Parliamentary Constituencies of Union Territory of J & K by

appointing the Delimitation Commission under the impugned

notification dated 6

th

March 2020 is completely in violation of

2

nd

proviso to clause (3) of Article 170. Similarly, the 3

rd

7

proviso to Article 82 imposes an embargo on the readjustment

of allocation of seats in the House of the People readjusted on

the basis of the 1971 census and the division of States into

territorial constituencies as may be readjusted on the basis of

the 2001 census till the figures of the first census conducted

after 2026 are available. A similar embargo has been imposed

by Articles 330 and 332 of the Constitution on reserving the

seats for Scheduled Castes and Scheduled Tribes till figures of

the first census conducted after 2026 are available;

(b)Earlier, the embargo was applicable till figures of the first

census taken after the year 2000 were available. It was

modified by the Constitution (84

th

Amendment Act, 2001) by

substituting the year 2026 for the year 2000. The

Government cannot undermine the objects and reasons for

the said amendment;

(c)Till the figures of the first census conducted after the year

2026 become available, the number of members of the

Legislative Assembly of the States remains the same.

Therefore, the effort to divide the Union territory of J & K into

territorial constituencies was illegal and uncalled for;

8

(d)Though the petitioners may not have challenged the validity

of Section 62 of the J&K Reorganisation Act, the same is

violative of clause (3) of Article 170 of the Constitution and

therefore, the provisions of Section 62 cannot be

implemented. He submitted that the number of

Constituencies in Legislative Assemblies of the State can be

readjusted only in accordance with Article 170 and in

particular, the 2

nd

proviso to clause (3) thereof, and therefore,

any attempt to make any readjustment of the constituencies

of the Union Territory of J & K violates Article 170. The

constitution of the Legislative Assembly of the Union

Territory of J & K must remain the same till the figures of the

first census conducted after the year 2026 are made

available;

(e)In view of Articles 82 and 83, constituencies of the House of

the People for the Union territory of J & K cannot be

reconstituted without the publication of the results of the

first census conducted after the year 2026;

(f)The opinion rendered by the learned Attorney General for

India on 6

th

July 2016 concerning the implementation of

Section 26 of the Andhra Pradesh Reorganisation Act, 2014

9

(for short, ‘the 2014 Act’) is very relevant. The learned

Attorney General for India opined that there was a conflict

between Section 26 of the 2014 Act and Article 170 of the

Constitution and therefore, Article 170 will prevail. It was

submitted that the said opinion will govern the relevant

provisions of the J&K Reorganisation Act as well;

(g)A non-obstante clause in a statute cannot override the

provisions of the Constitution. Reliance was placed upon a

decision of this Court in the case of Engineering Kamgar

Union v. Electro Steel Casting

1

on this behalf;

(h)The delimitation order of 2008 published by the Election

Commission cannot be deviated from. The guidelines issued

by the Election Commission are very relevant on this behalf;

(i) As under Section 62 of the J&K Reorganisation Act, the work

of delimitation has been entrusted to the Election

Commission, the notification dated 6

th

March 2020 which

permits Delimitation Commission to undertake the said

exercise, is completely illegal;

(j) It is a settled law that this Court can take judicial notice of

1 2004 (6) SCC 36

10

the proceedings of the Houses of Parliament. A question was

asked in the Lok Sabha by a Hon’ble Member regarding

undertaking the delimitation of the constituencies in the State

of Telangana along with the Union territory of J & K. The

answer given by Shri Nityanand Rai, the Hon’ble Minister of

State in the Ministry of Home Affairs on 3

rd

August 2021 to

the question was that the total number of seats in the

Assembly of each State will be readjusted after the first

census is published after the year 2026;

(k)In any event, the appointment of the Delimitation

Commission under the order dated 6

th

March 2020 is

completely contrary to Section 3 of the Delimitation Act which

provides that the Delimitation Commission shall be

constituted at the earliest. Sub-Section (6) of Section 10 of the

Delimitation Act, 2002 requires the Delimitation Commission

to complete the exercise and to publish orders under sub-

Section (1) of Section 10, not later than 31

st

July 2008.

Hence, the orders passed by the Delimitation Commission

constituted under the notification dated 6

th

March 2020 are in

complete violation of the mandate of sub-Section (6) of Section

10;

11

(l) The Delimitation Act, 2002 contemplates the constitution of

a single Delimitation Commission and not multiple

Commissions. He would, therefore, submit that the

constitution of the Delimitation Commission is completely

illegal;

(m)The States of Arunachal Pradesh, Assam, Manipur and

Nagaland were illegally excluded from the purview of the

notification dated 6

th

March 2020. The said action was taken

on the basis of the letter dated 22

nd

February 2021 addressed

by the Deputy Secretary of the Ministry of Home Affairs,

stating that considering the litigations pending concerning the

delimitation exercise in North-Eastern States, the delimitation

exercise should not be undertaken in the said States. The

earlier notification cannot be modified on the basis of the

views of a Deputy Secretary. The Union of India and the

Election Commission cannot apply different yardsticks to

different States. There was no reason to exclude the other

States included in the notification dated 6

th

March 2020;

(n)Sections 59 to 63 of the J&K Reorganisation Act are not

only violative of the express provisions of the Constitution but

also contradictory to each other. These Sections confer the

12

power of delimitation both on the Election Commission and

the Delimitation Commission which makes these Sections

completely illegal. Sub-Section (1)(b) of Section 11 of the

Delimitation Act, 2002 permits the Election Commission to

make any changes in the boundary, area, or the extent of any

constituency as described in the delimitation order already

issued and published;

(o)The act of omission of the words “but does not include the

State of Jammu and Kashmir” from Section 2(f) of the

Delimitation Act, 2002 by sub-Section (1) of Section 62 of the

J&K Reorganisation Act infringes Article 14 of the

Constitution of India;

(p)Consolidation of all the delimitation orders was already

made by the Election Commission in accordance with Section

9 of the Representation of the People Act, 1950;

(q)Articles 2 to 4 of the Constitution are subject to other

provisions of the Constitution and the provisions of the said

Articles cannot override the Constitutional scheme; and

(r)Notwithstanding the orders dated 5

th

May 2020 and 20

th

May 2022 passed in the exercise of powers under sub-Section

13

(1) of Section 10 of the Delimitation Act, 2002, the present

writ petition is maintainable. The decision of the Constitution

Bench of this Court in the case of Meghraj Kothari v.

Delimitation Commission & Ors.

2

will have no application to

the facts of the present case.

SUBMISSIONS OF THE UNION OF INDIA

10.Shri Tushar Mehta, the learned Solicitor General of India

appearing for the Union of India has made the following submissions:

(a) Writ petition suffers from delay and latches as the

Delimitation Commission was constituted by the impugned

notification dated 6

th

March 2020. The notification was

amended on 3

rd

March 2021 by deleting the States of

Arunachal Pradesh, Assam, Manipur and Nagaland.

Thereafter, on 14

th

March 2022, a draft delimitation order was

published by the Commission. As late as on 28

th

March 2022,

the present petition has been filed. For challenging the

notification dated 6th March 2020, the present writ petition

has been filed after a lapse of more than two years;

(b) During the pendency of this petition, the delimitation order

under sub-Section (1) of Section 10 of the Delimitation Act,

2 1967 (1) SCR 400

14

2002 has been issued by the Delimitation Commission which

has been brought into force with effect from 20

th

March 2022;

(c) Under sub-Section (2) of Section 10 of the Delimitation Act,

2002, there is a complete bar on any Court questioning the

order passed under sub-Section (1) of Section 10. In view of

the decision of the Constitution Bench in the case of Meghraj

Kothari

2

, the bar under sub-Section (2) of Section 10 is

applicable also to a remedy under Article 226 of the

Constitution. Article 329 also creates a bar on interference by

Courts in the matters of validity of any law relating to the

delimitation of constituencies. An order of delimitation of

constituencies has been held to be a law and therefore, now

the orders dated 5

th

May 2020 and 20

th

May 2022 cannot be

questioned;

(d)Sections 60 and 62 of the J&K Reorganisation Act operate in

different fields. Section 60 generally refers to the delimitation

of constituencies and Section 62 deals with the delimitation of

constituencies on the basis of census figures of the 2011

census. He pointed out that sub-Section (1) of Section 60

which confers power on the Election Commission of

delimitation uses the word “may” whereas Section 62 uses the

15

word “shall”;

(e) The Election Commission by a letter dated 2

nd

September

2019 informed the Government of India that since the

Delimitation Commission is constituted under Section 62 of

the J&K Reorganisation Act which is carrying out

readjustment of Parliamentary and Legislative Assembly

constituencies, it was not necessary for the Election

Commission to undertake the exercise under Section 60 of the

Delimitation Act;

(f) Article 3 specifically empowers Parliament by law to form a

new State/Union Territory and the said law referred to in

Article 3 must provide for the appropriate amendments to the

First Schedule and Fourth Schedule for giving effect to the

provisions of the law. Clause (2) of Article 4 specifically

provides that no such law shall be deemed to be an

amendment of the Constitution for the purpose of Article 368.

Reliance was placed upon a decision of the Constitution

Bench in the case of Mangal Singh & Anr. v. Union of

India

3

on this behalf; and

(g) Clauses (3) of Articles 81 and Article 170 do not apply to the

3 1967 (2) SCR 109

16

Union territories at all.

REJOINDER

11.The learned senior counsel appearing for the petitioners by way

of rejoinder urged that though there may not be any specific challenge

in the present petition to the validity of the provisions of the J&K

Reorganisation Act, the said challenge can always be inferred. He

submitted that the issues of inconsistency between the Constitutional

provisions and the provisions of the J&K Reorganisation Act have not

been answered by the learned Solicitor General of India.

CONSIDERATION OF SUBMISSIONS

Developments concerning the State of Jammu and Kashmir in the

year 2019

12. (a) On 5

th

August 2019, the Constitution (Application to Jammu &

Kashmir) Order, 2019 (for short ‘the 2019 Presidential Order’)

was promulgated by the Hon’ble President of India in the

exercise of powers under clause (1) of Article 370 of the

Constitution of India. The said order was issued in

concurrence with the Government of the State of Jammu and

Kashmir. Clause (2) of the 2019 Presidential Order provided

that all the provisions of the Constitution of India, as

amended from time to time, shall apply in relation to the State

17

of Jammu and Kashmir subject to exceptions and

modifications set out in the said order. Clause (4) was added

by the said Order to Article 367 in relation to the State of

Jammu and Kashmir which provided that the expression

“Constituent Assembly of the State referred to in clause (2)” in

the proviso to clause (3) of Article 370 of the Constitution

shall be read as “Legislative Assembly of the State”. The 2019

Presidential order was brought into force with immediate

effect;

(b) The second important development was the declaration

under Clause (3) of Article 370 of the Constitution (for short

‘the said declaration’) made by the Hon’ble President on the

recommendation of the Parliament. It was declared that from

6

th

August 2019, all clauses of Article 370 shall cease to be

operative, subject to the exceptions incorporated in the said

declaration. It was provided therein that notwithstanding

anything contained to the contrary in Articles 152 and 308 as

well as any other Article of the Constitution or any other

provision of the Constitution of Jammu and Kashmir or any

law, all the provisions of the Constitution of India as amended

from time to time shall apply to the State of Jammu and

18

Kashmir;

(c) Thus, in view of the 2019 Presidential Order and the said

declaration, with effect from 6

th

August 2019, all the

provisions of the Constitution of India became applicable to

the State of Jammu and Kashmir except the modifications

provided in the 2019 Presidential Order. As a result of the

said declaration and the 2019 Presidential Order, the special

status of the State of Jammu and Kashmir under the

Constitution by virtue of Article 370 virtually came to an end;

(d) Another important development that followed was the

enactment of the J&K Reorganisation Act which received the

assent of the Hon’ble President on 9

th

August 2019. 31

st

October 2019 was fixed as the appointed day under the J&K

Reorganisation Act by the Central Government. By virtue of

Sections 3 and 4 thereof, with effect from 31

st

October 2019, a

new Union Territory came into existence known as the Union

Territory of Ladakh. The said Union Territory comprises of the

areas covered by Kargil and Leh districts. From the appointed

day, the Union Territory of J & K was also created. The said

Union Territory comprises of the territories of the erstwhile

19

State of Jammu and Kashmir except the area covered by the

Union Territory of Ladakh. Thus, with effect from 31

st

October

2019, the State of Jammu and Kashmir ceased to exist and

the Union Territories of Ladakh, as well as Jammu &

Kashmir, were brought into existence;

(e). The Delimitation Act, 2002 became applicable to the

Union territory of J & K as the definition of “State” in clause (f)

of Section 2 thereof includes the Union Territories having a

Legislative Assembly. In addition, many other Central

enactments incorporated in Table-1 of the Fifth Schedule to

the J&K Reorganisation Act became applicable to the Union

territory of J & K;

(f) The Representation of the People Act, 1951 (for short ‘the

RP Act of 1951’) was not applicable to the elections to fill in

the seats in either House of Parliament in the State of Jammu

and Kashmir and the House of Legislature of the said State.

An amendment was carried out to the RP Act of 1951 by the

J&K Reorganisation Act by which the provisions of the RP Act

of 1951 were made applicable to both the newly created Union

Territories. Prior to that, The Jammu and Kashmir

Representation of the People Act, 1957 (for short “J&K R.P

20

Act”) was applicable to the State. We may note here that as

the Representation of the People Act, 1950 (for short ‘the RP

Act of 1950’), was applicable to the State of Jammu and

Kashmir, the same continues to apply to the two newly

created Union Territories;

(g) By virtue of Section 13 of the J&K Reorganisation Act, the

provisions contained in Article 239A which were earlier

applicable only to the Union Territory of Puducherry were

made applicable to the Union Territory of J and K. Article

239A, inter alia, provides that Parliament may by law create a

body to function as a legislature of the Union Territory of

Puducherry.

The issue of the validity of provisions of the J&K Reorganisation

Act.

13.We may note here that during the course of the hearing of

submissions of the learned senior counsel appearing for the

petitioners, he attempted to assail the validity of certain provisions of

the J&K Reorganisation Act. Therefore, we pointed out to him that

there is no challenge incorporated in the present writ petition to the

constitutional validity of any of the provisions of the J&K

Reorganisation Act. The initial response of the senior counsel was

21

that he does not wish to challenge the provisions. However,

subsequently, he submitted that the challenge to the relevant

provisions of the J&K Reorganisation Act is implicit in this writ

petition.

14.There cannot be any doubt that when a party wants to challenge

the constitutional validity of a statute, he must plead in detail the

grounds on which the validity of the statute is sought to be

challenged. In absence of the specific pleadings to that effect, Court

cannot go into the issue of the validity of statutory provisions. The

Constitutional Courts cannot interfere with the law made by the

Legislature unless it is specifically challenged by incorporating specific

grounds of challenge in the pleadings. The reason is that there is

always a presumption of the constitutionality of laws. The burden is

always on the person alleging unconstitutionality to prove it. For that

purpose, the challenge has to be specifically pleaded by setting out the

specific grounds on which the challenge is made. A Constitutional

Court cannot casually interfere with legislation made by a competent

Legislature only by drawing an inference from the pleadings that the

challenge to the validity is implicit. The State gets a proper

opportunity to defend the legislation only if the State is made aware of

the grounds on which the legislation is sought to be challenged.

22

15.Though an opportunity was available to the petitioners to

challenge the provisions of the J&K Reorganisation Act, the petitioners

have chosen not to do so. We may also note here that the petitioners

are also not questioning the 2019 Presidential Order and the said

declaration. Therefore, we will have to proceed on the footing that the

2019 Presidential Order, the said declaration and the provisions of the

J&K Reorganisation Act are valid. It is in this context that the

submissions made across the Bar will have to be appreciated.

Findings on the challenges in the Writ Petition

16.The Constitution makes a clear distinction between the States

and Union Territories as can be seen from Article 1 and the First

Schedule. Part V of the Constitution deals with the Union. Chapter II

of Part V deals with Parliament. Part VI deals with the States. Chapter

III of Part VI deals with the State Legislature. Part VIII of the

Constitution independently deals with the Union Territories.

17.Article 3 provides that Parliament may by law form new States

and alter the areas, boundaries or names of the existing States. The

explanation I provides that in clauses (a) to (e) of Article 3, a “State”

includes “Union Territory”. Thus, Explanation I makes it amply clear

that the power of Parliament under Clause (a) of Article 3, to make a

23

law to form a new State or to alter a boundary of a State includes a

power to make a law to form a new Union Territory. Explanation II

clarifies that the power conferred by clause (a) on Parliament to enact

the law to form a new State includes a power to form a Union Territory

by uniting parts of any State or Union Territory to any other State or

Union Territory. Clause (1) of Article 4 provides that any law made by

Parliament as provided in Article 3 shall contain such provisions for

the amendment of the First Schedule (containing the list of States and

Union Territories) and Fourth Schedule (containing allocation of seats

in the Council of States) as may be necessary for the purposes of

giving effect to the provisions of the law. Such a law may also contain

such supplemental, incidental and consequential provisions including

provisions as to representation in Parliament and in the Legislature or

Legislatures of the State or States affected by such law as Parliament

may deem necessary. Clause (2) of Article 4 clarifies that no such law

made by Article 3 shall be deemed to be an amendment of the

Constitution for the purposes of Article 368. By the same law, a

provision can be made as to the representation in Parliament and in

the legislature of the Union Territory created by such law. The

Constitution Bench in the case of Mangal Singh

3

has held that the

power under Article 4 is wide enough even to reduce the total

24

members of the Legislative Assembly below the minimum prescribed

by clause (1) of Article 170.

18.Firstly, we will deal with the issue of applicability of Article 170

having the title “Composition of the Legislative Assemblies” to the

Union Territory of J & K. Article 170 forms part of Chapter III under

the title “The State Legislature”. Chapter III has been incorporated in

Part VI of the Constitution which deals with the States. Much

emphasis was laid on the violation of the provisions contained in the

second Proviso to Clause (3) of Article 170 by the learned counsel

appearing for the petitioners. But we may note here that the said

Article does not deal with the legislatures of Union Territory at all.

Articles 239A and 239AA which are included in Part VIII of the

Constitution are the Articles that deal with the creation of a body to

function as legislature and Council of Ministers for certain Union

Territories. For the sake of convenience, we are reproducing Article

239A which reads thus:

“239A. Creation of local Legislatures or Council of

Ministers or both for certain Union territories -- (1)

Parliament may by law create [for the Union territory

of [Puducherry] --

(a) a body, whether elected or partly

nominated and partly elected, to function as a

Legislature for the Union territory, or

(b) a Council of Ministers, or both with such

constitution, powers and functions, in each case,

25

as may be specified in the law.

(2) Any such law as is referred to in clause (1) shall

not be deemed to be an amendment of this

Constitution for the purposes of article 368

notwithstanding that it contains any provision

which amends or has the effect of amending this

Constitution.”

(emphasis added)

Article 239A as it originally stood provided that Parliament may by law

create for the Union Territory of Puducherry a body to function as a

Legislature for the Union Territory or a Council of Ministers or both.

Such a body to act as a Legislature of the Union Territory covered by

Article 239A may be elected or partly nominated and partly elected.

By virtue of Section 13 of the J&K Reorganisation Act, with effect from

31

st

October 2019, Article 239A became applicable to the Union

Territory of J and K. As noted by clause (2) of Article 239A, the law

contemplated by clause (1) of Article 239A shall not be deemed to be

an amendment to the Constitution for the purposes of Article 368

notwithstanding that it contains any provision which amends or has

the effect of amending the Constitution.

19. On a conjoint reading of Articles 3,4 and 239A, we find that:-

a)Parliament by making a law can convert an existing State into

one or more Union territories;

b)Parliament is empowered by law to create a body of legislature

26

for the Union territories of Puducherry and J&K. Accordingly,

sub-Section (2) of Section 14 of the J & K Reorganisation Act

provides that there shall be a Legislative Assembly for the

Union Territory of J & K.; and

c)Even if the law made by Parliament creating a body of

legislature for Union territories of Puducherry and J&K has

the effect of amending certain parts of the Constitution, it

shall not be deemed to be an amendment of the Constitution

for the purposes of Article 368.

20.Now coming to the J&K Reorganisation Act, it is apparent that

the said law has been made by Parliament in the exercise of powers

under Articles 3,4 and 239A. The said law created two Union

territories in place of the State of Jammu and Kashmir. The said law

provides for the amendment of the First and Fourth schedule for

giving effect to its provisions. Section 13 provides for amendment of

Article 239A for applying the same to the Union territory of J & K.

Section 13 is a supplemental and consequential provision made by

Parliament as provided in clause (1) of Article 4 for the purposes of

giving effect to the creation of the new Union territory of J and K. In

view of clause (2) of Article 4, though Section 13 has the effect of

amending Article 239A, it will not be affected by Article 368 of the

27

Constitution.

21.Under sub-section (2) of Section 14 of the J&K Reorganisation

Act, a Legislative Assembly for the Union territory of J and K has been

created. Sub-section (3) provides that the total number of seats in the

Legislative Assembly of the Union territory of J & K to be filled by the

persons chosen by direct election shall be 107. Clause (a) of sub-

section (4) of Section 14 provides that 24 seats in the Legislative

Assembly of the said Union territory shall remain vacant until the area

of the Union Territory under the occupation of Pakistan ceases to be

so occupied. We may note here that under the Constitution of Jammu

and Kashmir, the seats in the State Legislative Assembly excluding 24

seats earmarked for Pakistan occupied territory were 87 out of which

7 seats were reserved for Scheduled Castes and Schedule Tribes.

22.As far as the number of constituencies is concerned, we must

also refer to Part V of the J&K Reorganisation Act having the title

“Delimitation of Constituencies”. Sub-section (1) of Section 60

provides that the number of seats in the Legislative Assembly of the

Union territory of J & K shall be increased from 107 to 114. However,

the excluded 24 seats covered by Pakistan occupied territory remain

the same. Thus, the total number of seats available now for holding

28

elections to the Legislative Assembly of the Union territory of J & K is

90.

23. Hence, as far as the Legislative Assembly of the Union territory

of J & K is concerned, Article 170 will have no application as it forms a

part of Chapter III of Part VI which deals with only the State

Legislature. It has no application to the Legislatures of Union

Territories. The reason is that the Legislative Assemblies of the

concerned Union Territories will be governed by the law made by the

Parliament in accordance with Article 239A and not by the provisions

of Chapter III of Part VI. As Article 170 is not applicable to the

Legislature of the Union Territory of J & K, the main thrust of the

argument that certain provisions of the J&K Reorganisation Act and

actions taken thereunder are in conflict with Article 170 and in

particular Clause (3) thereof is clearly misconceived and deserves to be

rejected.

The exercise of Delimitation

24.Now, we come to the issue of delimitation of constituencies of the

Legislative Assembly of the Union territory of J and K. There were two

earlier enactments dealing with the establishment of the Delimitation

Commission. The first one was the Delimitation Commission Act, 1962

29

and the second one was the Delimitation Act, 1972. Both the Acts

were not applicable to the State of Jammu and Kashmir as the

definition of the State incorporated in both Acts specifically excluded

the State of Jammu and Kashmir. The same is the case with the

Delimitation Act, 2002. We may note here that Section 3 of the J&K

RP Act laid down the requirement of the establishment of the

Delimitation Commission which provided that the Delimitation

Commission shall distribute the seats in the Legislative Assembly to

single member territorial constituencies and delimit them having

regard to various factors mentioned in sub-section (2) of Section 3.

Section 4-B of the J&K RP Act provided for the Delimitation

Commission to pass an order regarding the delimitation of

constituencies and publish the same. In fact, the Delimitation of

Assembly Constituencies Order, 1995 was issued which was

applicable to the State of Jammu and Kashmir. Section 4-C of the J&K

RP Act conferred power on the Election Commission to correct any

printing mistakes in the final order of the Delimitation Commission or

any error or omission. The Election Commission was also empowered

to make amendments when the boundaries or names of any district or

any territorial division mentioned in the final order of the Delimitation

Commission were altered.

30

25. By virtue of sub-section (5) of Section 14 of the J&K

Reorganisation Act, the said Delimitation Order of 1995 was amended

as provided in the Third Schedule thereof. The Third Schedule

contains the details of the amendments to the delimitation of the

assembly constituencies made by the said Delimitation Order of 1995

in relation to the existing 83 assembly constituencies out of a total

107 as provided in sub-section (3) of Section 14. 24 constituencies

covered by the Pakistan occupied area were obviously not covered by

the Delimitation Order. Thus, by virtue of sub-section (5) of Section

14, the delimitation of 83 constituencies of the Legislative Assembly of

the Union Territory of J & K was incorporated in the form of the Third

Schedule which sets out the boundaries of and the areas incorporated

in the new individual 83 constituencies.

26.Now we come to Part V of the of J&K Reorganisation Act which

deals with the Delimitation of Constituencies. By virtue of clause (a) of

sub-section (1) of Section 62, the provisions of the Delimitation Act,

2002 were made applicable to the Union Territory of J & K with effect

from 31

st

October 2019. For the sake of convenience, we are

reproducing Sections 60 to 63 of the J&K Reorganisation Act which

read thus:

31

60. (1) Without prejudice to sub-sections (3) of

section 14 of this Act, the number of seats in the

Legislative Assembly of Union territory of Jammu &

Kashmir shall be increased from 107 to 114, and

delimitation of the constituencies may be

determined by the Election Commission in the

manner hereinafter provided—

(a) the number of seats to be reserved for the

Scheduled Castes and the Scheduled Tribes in the

Legislative Assembly, having regard to the relevant

provisions of the Constitution;

(b) the assembly constituencies into which the

Union territory shall be divided, the extent of each

of such constituencies and in which of them seats

shall be reserved for the Scheduled Castes or for the

Scheduled Tribes; and

(c) the adjustments in the boundaries and

description of the extent of the parliamentary

constituencies in each Union territory that may be

necessary or expedient.

(2) In determining the matters referred to in clauses (b)

and (c) of sub-section (1), the Election Commission

shall have regard to the following provisions, namely:—

(a) all the constituencies shall be single-member

constituencies;

(b) all constituencies shall, as far as practicable, be

geographically compact areas, and in delimiting them,

regard shall be had to physical features, existing

boundaries of administrative units, facilities of

communication and conveniences to the public; and

(c) constituencies in which seats are reserved for the

Scheduled Castes and the Scheduled Tribes shall, as

far as practicable, be located in areas where the

proportion of their population to the total population is

the largest.

(3) The Election Commission shall, for the purpose of

assisting it in the performance of its functions under

sub-section (1), associate with itself as associate

members, four persons as the Central Government may

by order specify, being persons who are the members of

the Legislative Assembly of the Union territory of

Jammu & Kashmir or four members of the House of the

32

People representing the Union territory of Jammu and

Kashmir:

Provided that none of the associate members shall have

a right to vote or to sign any decision of the Election

Commission.

(4) If, owing to death or resignation, the office of an

associate member falls vacant, it shall be filled as far as

practicable, in accordance with the provisions of sub-

section (3).

(5) The Election Commission shall—

(a) publish its proposals for the delimitation of

constituencies together with the dissenting proposals, if

any, of any associate member who desires publication

thereof in the Official Gazette and in such other

manner as the Commission may consider fit, together

with a notice inviting objections and suggestions in

relation to the proposals and specifying a date on or

after which the proposals will be further considered by

it;

(b) consider all objections and suggestions which may

have been received by it before the date so specified;

and

(c) after considering all objections and suggestions

which may have been received by it before the date so

specified, determine by one or more orders the

delimitation of constituencies and cause such order or

orders to be published in the Official Gazette, and there

upon such publication, the order or orders shall have

the full force of law and shall not be called in question

in any court.

(6) As soon as may be after such publication, every

such order relating to assembly constituencies shall be

laid before the Legislative Assembly of the Union

territory of Jammu and Kashmir.

61. (1) The Election Commission may by notification in

the Official Gazette,—

(a) correct any printing mistakes in any order made

under section 60 or any error arising therein from

inadvertent slip or omission; and

(b) where the boundaries or name of any territorial

division mentioned in any such order or orders is or are

altered, make such amendments as appear to it to be

33

necessary or expedient for bringing such order up-to-

date.

(2) Every notification under this section relating to an

assembly constituency shall be laid, as soon as may be

after it is issued, before the Legislative Assembly.

62. (1) On and from the appointed day,

notwithstanding the publication of orders under sub-

section (1) of section 10 of the Delimitation Act, 2002 or

anything contained in sub-section (2) or sub-section (4)

of the said section, the Delimitation Act, 2002 shall

be deemed to have been amended as provided

below:

(a) in section 2(f), the words “but does not include

the State of Jammu and Kashmir” shall be omitted;

and

(b) for the purpose of delimitation of Assembly and

Parliamentary Constituencies, the words and figure

“census held in the year 2001”, wherever occurring,

shall be construed as words and figure “census held

in the year 2011”.

(2) Readjustment of the constituencies as provided

under section 60 in the successor Union territory of

Jammu & Kashmir into Assembly Constituencies,

shall be carried by the Delimitation Commission, to

be constituted under the Delimitation Act, 2002 as

amended by this Act, and shall take effect from

such date as the Central Government may, by order,

published in the Official Gazette, specify.

(3) Readjustment of the constituencies as provided

under section 11 in the successor Union territory of

Jammu & Kashmir into Parliamentary

Constituencies, shall be carried by the Delimitation

Commission, to be constituted under the

Delimitation Act, 2002 as amended by this Act, and

shall take effect from such date as the Central

Government may, by order, published in the Official

Gazette, specify.

63. Special provisions as to readjustment of

Assembly and Parliamentary Constituencies.—

Notwithstanding anything contained in sections 59 to

61, until the relevant figures for the first census taken

after the year 2026 have been published, it shall not

34

be necessary to readjust the division of successor

Union territory of Jammu and Kashmir into Assembly

and Parliamentary Constituencies and any reference

to the “latest census figures” in this Part shall be

construed as a reference to the 2011 census figures.”

(emphasis added)

27.As noted earlier, the delimitation of 83 constituencies of the

Union Territory was made under the J&K Reorganisation Act and was

incorporated in the Third Schedule as provided in sub-section (5) of

Section 14. By virtue of the mandate of sub-section (1) of Section 60,

the total number of seats in the Legislative Assembly of the Union

Territory was required to be increased from 107 to 114. Thus, by

excluding 24 seats from Pakistan occupied areas, the mandate was to

increase the seats from 83 to 90. For giving effect to the increase in

the number of seats as aforesaid, the exercise of delimitation for

dividing the Union Territory into 90 constituencies and determining

the number of seats to be reserved for Scheduled Castes and Schedule

Tribes was required to be undertaken. Sub-section (1) of Section 60

provides that the said delimitation exercise may be undertaken by the

Election Commission. However, sub-section (2) of Section 62 provides

that the readjustment of the constituencies as provided under Section

60 in the successor Union Territory of J & K into assembly

constituencies shall be carried out by the Delimitation Commission to

35

be constituted under the Delimitation Act, 2002 as amended by the

J&K Reorganisation Act. Sub-section (1) of Section 60, as noted

earlier, provides that the exercise of the division of the newly

constituted Union Territory into 90 assembly constituencies and

providing for reservation may be undertaken by the Election

Commission. However, the purport of Section 62 is that if a

Delimitation Commission is constituted under the Delimitation Act

2002, the exercise provided by clauses (a) to (c) of sub-section (1) of

Section 60 shall be carried out by the Delimitation Commission.

However, sub-section (2) of Section 62 refers to the readjustment of

the constituencies. But, the purport of sub-section (2) of Section 62 is

that the readjustment means the creation of 90 constituencies in the

newly set up Union territory. Thus, the process of readjustment

contemplated by sub-section (2) of Section 62 is nothing but the

exercise of delimitation under sub-section (1) of Section 60.

28.If we see the provisions of the Delimitation Act 2002, it indicates

what is readjustment. Section 4 reads thus:-

“4. Duties of the Commission.—(1) The readjustment

made, on the basis of the census figures as ascertained

at the census held in the year 1971 by the Delimitation

Commission constituted under section 3 of the

Delimitation Act, 1972 (76 of 1972), of the allocation of

seats in the House of the People to the several States

and the total number of seats in the Legislative

36

Assembly of each State shall be deemed to be the

readjustment made by the Commission for the

purposes of this Act.

(2) Subject to the provisions of sub-section (1) and

any other law for the time being in force, 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]:

Provided that where on such readjustment only one

seat is allocated in the House of the People to a State,

the whole of that State shall form one territorial

constituency for the purpose of elections to the House

of the People from that State.”

(emphasis added)

What is important to note is that by virtue of Clause (b) of sub-section

(1) of Section 62 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.

29.Under Section 9 of the Delimitation Act, 2002, a specific power

has been conferred on the Delimitation Commission of conducting the

Delimitation exercise. Section 9 reads thus:

“9. Delimitation of constituencies.— (1) The

Commission shall, in the manner herein provided,

then, distribute the seats in the House of the People

allocated to each State and the seats assigned to

the Legislative Assembly of each State as readjusted

on the basis of 1971 census to single-member

territorial constituencies and delimit them on the

basis of the census figures as ascertained, at the

census held in the year [2001], having regard to the

provisions of the Constitution, the provisions of the Act

37

specified in section 8 and the following provisions,

namely:—

(a) all constituencies shall, as far as practicable, be

geographically compact areas, and in delimiting them

regard shall be had to physical features, existing

boundaries of administrative units, facilities of

communication and public convenience;

(b) every assembly constituency shall be so delimited as

to fall wholly within one parliamentary constituency;

(c) constituencies in which seats are reserved for the

Scheduled Castes shall be distributed in different parts

of the State and located, as far as practicable, in those

areas where the proportion of their population to the

total is comparatively large; and

(d) constituencies in which seats are reserved for the

Scheduled Tribes shall, as far as practicable, be located

in areas where the proportion of their population to the

total is the largest.

(2) The Commission shall—

(a) publish its proposals for the delimitation of

constituencies, together with the dissenting proposals,

if any, of any associate member who desires publication

thereof, in the Gazette of India and in the Official

Gazettes of all the States concerned and also in such

other manner as it thinks fit;

(b) specify a date on or after which the proposals shall

be further considered by it;

(c) consider all objections and suggestions which may

have been received by it before the date so specified,

and for the purpose of such consideration, hold one or

more public sittings at such place or places in each

State as it thinks fit; and

(d) thereafter by one or more orders determine—

(i) the delimitation of parliamentary constituencies; and

(ii) the delimitation of assembly constituencies, of each

State.”

(emphasis added)

As noted earlier, by virtue of clause (b) of sub-section (1) of

Section 62 of the J&K Reorganisation Act, the year 2001 appearing in

38

sub-section (1) of Section 9 of the Delimitation Act, 2002 will have to

be read as 2011. Therefore, the Delimitation Commission established

under the Order dated 6

th

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. 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.

30.Before we deal with the issue of the legality of the appointment of

the Delimitation Commission, we must deal with parliamentary

constituencies in the newly created Union Territories of J&K and

Ladakh. In the First Schedule to the RP Act of 1950, a total of 6 seats

were allocated to the erstwhile State of Jammu and Kashmir with no

reservation for Scheduled Castes and Schedule Tribes. Section 10 of

the J&K Reorganisation Act provides that out of the 6 seats allocated

to the erstwhile State, 5 will be allocated to the Union Territory of J &

K and one will be to the Union Territory of Ladakh. That is how

Section 11 provides thereof that the Delimitation of Parliamentary

39

Constituencies Order, 1976 stands amended as provided in the

Second Schedule of the said Act. Thus, the delimitation of the five

parliamentary constituencies of the Union Territory of J & K and one

constituency of the Union Territory of Ladakh was made by virtue of

Section 11 as provided in the Second Schedule.

31.We have already quoted Section 60 of the J&K Reorganisation

Act. Clause (c) of sub-section (1) thereof provides that considering the

increase in the number of seats of the Legislative Assembly, the

adjustments in the boundaries and description of the extent of the

Parliamentary Constituencies in each Union Territory may be made by

the Election Commission. Sub-section (3) of Section 62 provides that

readjustment of the constituencies as provided in Section 11 in the

successor Union Territories into Parliamentary Constituencies shall be

carried out by the Delimitation Commission. The readjustment

referred to in sub-section (3) of Section 62 is the adjustment of

boundaries and description of the extent of the Parliamentary

Constituencies as provided in sub-section (1) of Section 60. This

became necessary as a result of the requirement of

readjustment/delimitation of 90 constituencies of the Legislative

Assembly. Therefore, there is no illegality associated with the

delimitation/readjustment of Parliamentary constituencies of the

40

Union Territory of J & K undertaken by the Delimitation Commission.

The legality of the appointment of the Delimitation Commission

by the Notification of 6

th

March 2020

32.The impugned notification dated 6

th

March 2020 constituting the

Delimitation Commission reads thus:

“MINISTRY OF LAW AND JUSTICE

Legislative Department

NOTIFICATION

New Delhi, the 6

th

March, 2020

S.O. 1015 (E). – In exercise of the powers conferred by

Section 3 of the Delimitation Act, 2002 (33 of 2002), the Central

Government hereby constitutes the Delimitation Commission for

the purpose of delimitation of Assembly and Parliamentary

constituencies in the Union territory of Jammu & Kashmir and

the States of Assam, Arunachal Pradesh, Manipur and Nagaland,

consisting of the following member, namely:-

(i)Justice (Retd.) Ranjana Prakash Desai - Chairperson

(ii) Shri Sushil Chandra,

Election Commissioner - Member, (ex officio)

(iii)The State Election Commissioner of

the concerned State of Union Territory

appointed under clause (1) of article

243K or under clause (1) of article 243L

of the Constitution, as the case may be.

2.The appointment of Justice (Retd.) Ranjana Prakash Desai

shall be for a period of one year from the date of the publication

of this notification in the Official Gazette or till further orders,

whichever is earlier.

3.The said Delimitation Commission shall delimit the

constituencies, -

(i)of the Union territory of Jammu & Kashmir in

accordance with the provisions of Part V of the Jammu &

Kashmir Reorganisation Act, 2019 (34 of 2019) and the

provisions of the Delimitation Act, 2002 (33 of 2002).

(ii)of the States of Assam, Arunachal Pradesh, Manipur

and Nagaland in accordance with the provisions of the

Delimitation act, 2002 (33 of 2002).”

(emphasis added)

Hence, it is obvious that when the said notification requires the

41

Delimitation Commission to undertake the exercise of the delimitation

of Assembly and Parliamentary Constituencies in the Union Territory

of J & K, it refers to the exercise of readjustment as provided in sub-

section (2) and (3) of Section 62 which is nothing but delimitation

exercise contemplated by sub-section (1) of Section 60 due to the

reason of the increase in the membership of the Legislative Assembly

from 83 to 90. Moreover, the readjustment was necessary to be made

on the basis of the census figures of the 2011 census as contemplated

by Section 4 and sub-section (1) of Section 9 of the Delimitation Act,

2002 as amended by clause (b) of sub-section (1) of Section 62 of the

J&K Reorganisation Act.

33.One of the contentions raised by the petitioners is that the

Delimitation Act, 2002 contemplates the constitution of only one

Delimitation Commission and not more than one. As noted earlier, the

Delimitation Act, 2002 was made applicable for the first time to the

State of Jammu and Kashmir with effect from 31

st

October 2019. Even

the Delimitation Acts of 1962 and 1972 were not applicable to the

State of Jammu and Kashmir. By virtue of the J&K Reorganisation

Act, not only provisions of the Delimitation Act, 2002 were made

applicable to the Union Territory of J & K, but a mandatory duty of

readjustment of the constituencies in the Union Territory both of the

42

Legislative Assembly and Parliament was entrusted to the Delimitation

Commission by sub-Sections (2) and (3) of Section 62. Till 31

st

October

2019, the Delimitation Commission for the State/Union Territory of J

& K under the Delimitation Act, 2002 could not have been established

as the said enactment was not made applicable to the State of Jammu

and Kashmir till then.

34.Sub-section (6) of Section 10 of the Delimitation Act, 2002 reads

thus:

“10. Publication of orders and their date of

operation.—

xxx xxx xxx

(6) The Commission shall endeavour to complete and

publish each of its orders referred to in sub-section (1)

in the manner provided in that sub-section, 2 [within a

period not later than 31st day of July, 2008] under

section 3.”

Sub-section (6) uses the word “endeavour”. Section 10A of the

Delimitation Act, 2002 itself indicates that the time limit of 31

st

July

2008 fixed under sub-Section (6) of Section 10 is not sacrosanct as it

confers a power on the Hon’ble President to defer the delimitation

exercise in a State under certain circumstances. Thus, the time limit

provided in sub-section (6) of Section 10 was never intended to be

mandatory. While amending Section 2(f) of the Delimitation Act by the

J&K Reorganisation Act, sub-section (6) of Section 10 has not been

amended for enlarging the period provided thereunder. However, the

43

intention of the legislature as reflected in sub-sections (2) and (3) of

Section 62 of the J&K Reorganisation Act is crystal clear. The very fact

that the duty of making the readjustment as per sub-sections (2) and

(3) of Section 62 on the basis of the 2011 census figures has been

entrusted to the Delimitation Commission suggests that the legislature

intended that the Delimitation Commission for the Union Territory of

Jammu & Kashmir will remain unaffected by the requirement of

completing the exercise by the end of July 2008. The provisions of

sub-Sections (2) and (3) of Section 62 will have to be interpreted in a

manner that gives effect to the intention of the legislature. If it is held

that due to the failure of the legislature to modify the time limit

provided in sub-Section (6) of Section 10 of the Delimitation Act, 2002,

the Central Government is powerless to appoint a Delimitation

Commission for the newly created Union territory, the provisions of

Section 62 of the J&K Reorganisation Act will be rendered nugatory. A

statute cannot be interpreted in a manner that will render some of its

provisions otiose. A statute must be construed and interpreted in such

a manner as to make it workable. Therefore, the argument based on

sub-Section (6) of Section 10 of the Delimitation Act 2002 will have to

be rejected.

35.Articles 2 and 3 of the Constitution enable the Parliament to

44

create new States and Union territories. Accordingly, the two new

Union territories have been created. 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. 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 is 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 6

th

March 2020.

36.Under the notification dated 6

th

March 2020, the appointment of

the Chairperson of the Delimitation Commission who was a retired

Judge of this Court was for a period of one year. By the notification

dated 3

rd

March 2021, the said period was extended up to two years.

By the third impugned notification dated 21

st

February 2022, the said

45

period of two years was extended to two years and two months. Once

the Delimitation Commission was established, there is nothing wrong

if the Central Government extended the period of appointment of the

Chairperson till the task of delimitation/readjustment was completed.

The Delimitation Act, 2002 is silent about the term of the appointment

of the Chairperson.

Exclusion of the North-Eastern States from the purview of the

notification dated 6

th

March 2020

37.Another challenge which is seriously pressed is to that part of the

second impugned notification dated 31

st

March 2021 by which the

States of Arunachal Pradesh, Assam, Manipur and Nagaland were

excluded from the purview of the Delimitation Commission constituted

under the notification dated 6

th

March 2020. In the counter affidavit

filed by the Union of India, reliance has been placed on the letter

dated 22

nd

February 2021 issued by the Deputy Secretary (NE-III),

Ministry of Home Affairs, Government of India. In paragraphs 5 and 6

of the counter affidavit, it is stated that the Delimitation Commission

set up on 12

th

July 2002 under the Chairmanship of a retired Judge of

this Court had completed the delimitation exercise in respect of the

entire country except for four North-Eastern States of Assam,

Arunachal Pradesh, Manipur and Nagaland. It is stated that

delimitation of these four States was deferred due to security reasons.

46

Section 10A of the Delimitation Act, 2002 permitted such a course to

be adopted. Though these four States were a part of the notification

dated 6

th

March 2020, it is stated in the letter dated 22

nd

February

2021 that there were number of petitions pending in this Court as well

as in the Manipur High Court concerning delimitation exercise in

North-Eastern States and that in the Court cases, discrepancies in

census figures of 2001 in relation to these States were pointed out. In

fact, it is stated that a number of notices have been issued regarding

the said discrepancies. Therefore, the said letter was issued with the

approval of the competent authority in which it was stated that it may

not be conducive to grant an extension for the process of delimitation

in the four North-Eastern States. The term of the Chairman of the

Delimitation Commission constituted under the first impugned

notification dated 6

th

march 2020 was to expire on 5

th

March 2021. In

view of the aforesaid letter, while extending the term of the Chairman

by one more year by the second impugned notification dated 3

rd

March

2021, the said four States were excluded. Thus, in effect, the term of

the Delimitation Commission constituted under the notification dated

6

th

March 2020 was extended by a period of one year only in relation

to the Union territory of J & K. By the third impugned notification, the

period was further extended by a period of two months. Section 10A of

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the Delimitation Act, 2002 itself permits the postponement of the

exercise of delimitation in certain contingencies. Moreover, the

position and the status of the newly created Union Territory of J&K

under the Constitution is completely different from the four North-

Eastern States. In its applicability to the Union Territory of J & K,

Sections 4 and 9 of the Delimitation Act, 2002 stand amended by

requiring readjustment to be carried out on the basis of the census

figures of 2011. In case of the North Eastern States, there is no such

amendment. Therefore, two unequal cannot be treated as equals.

Hence, the argument based on the violation of Constitutional

provisions including Article 14 deserves to be rejected.

38.The learned counsel appearing for the petitioners did not dispute

that the draft order of delimitation was issued on 14

th

March 2022.

The final order was issued on 5

th

May 2022 which was brought into

force with effect from 20

th

May 2022. While accepting that he has not

challenged these subsequent orders, the learned counsel submitted

that the petitioners cannot challenge the said order in view of sub-

Section (2) of Section 10 which lays down that every such order shall

have the force of law and shall not be called in question in any Court.

In fact, the learned Solicitor General by relying upon a decision of the

Constitution Bench in the case of Megharaj Kothari

2

urged that the

48

intention of the legislature is that once an order passed by the

Delimitation Commission is published in accordance with sub-Section

(1) of Section 10, the same are treated as law, which cannot be

questioned in any Court. In paragraph 21 of the said decision, the

Constitution Bench held that though orders passed under Sections 8

and 9 of the Delimitation Act, 2002 in accordance with sub-Section (1)

of Section 10 are not part of an act of the Parliament but its effect

would be the same. In any event, the order of the Delimitation

Commission has not been questioned in this petition.

39.We may note here that there is a great deal of substance in the

argument of the learned Solicitor General that the challenge to the

notification dated 6

th

March 2020 was belatedly made by filing the

present petition on 28

th

March 2022 and for the said delay, there is no

valid explanation. Moreover, the notification dated 6

th

March 2020

was substantially acted upon by completing the exercise of

delimitation as the draft Order was also published on 14

th

March

2022.

40.In the writ petition, the first prayer is for challenging the increase

in number of seats from 107 to 114. The said provision is made by

sub-Section (1) of Section 60. Without challenging the legality of any of

the provisions of the J&K Reorganisation Act, it is contended that the

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Act of increasing the number of seats is violative of Articles 81, 82,

170, 330 and 332 of the Constitution of India. Article 81 deals with

the composition of the House of the People; Article 82 deals with the

readjustment and allocation of seats of the House of Parliament after

the census and Article 170 deals with legislatures of the States. None

of these provisions deal with the Legislature of any Union territory.

Article 330 deals with the reservation of seats for Scheduled Castes

and Scheduled Tribes in the House of the People. Article 332 deals

with the reservation of seats for Scheduled Castes and Scheduled

Tribes in the Legislative Assemblies of the States. Both these

provisions do not deal with reservation of seats for the House of

legislature of Union Territories. In any case, even assuming that

Article 332 can be applied to the reservation of seats for Scheduled

Castes and Scheduled Tribes in the Legislatures of Union territories, it

is not shown how the act of increasing the total number of seats in the

legislature will offend Article 332, so long as the reservation is

maintained as per the formula provided under Article 332.

41.Another argument sought to be made is that the provision made

for 114 seats in the legislature of the newly constituted Union

Territory of J & K is illegal. This submission calls for no consideration

as there is no challenge to the validity of sub-section (1) of Section 60

50

of the J&K Reorganisation Act.

42.Another argument was canvassed that the Delimitation Order of

2008 published by the Election Commission cannot be deviated from.

The perusal of the said Order shows that it reproduces the

delimitation of the Parliamentary and Legislative Assembly

Constituencies made by the Delimitation of Parliamentary and

Assembly Constituencies Orders of 1976 and 1995 for the State of

Jammu and Kashmir. Both the orders of 1976 and 1995 have been

expressly modified by the J&K Reorganisation Act by virtue of Sections

11(4) and 14(5) as provided in the second and third Schedules thereto.

Hence, the argument deserves to be rejected.

43.The petitioners have overlooked the fact that clause (b) of sub-

Section (1) of Section 62 of the J&K Reorganisation Act has further

amended the Delimitation Act, 2002 by providing that words and

figures ‘census held in the year 2001’ appearing in the Delimitation

Act shall be construed as ‘census held in the year 2011’. To its

application to the Union territory of J & K, the year 2001 in sub-

section (1) of Section 9 of the Delimitation Act, 2002 has been

substituted by the year 2011 and therefore, distribution of seats in the

House of the People and seats assigned to the Legislative Assembly

will have to be readjusted on the basis of 2011 census and the

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delimitation will have to be carried out on the basis of the figures of

the census held in the year 2011. The effect of Section 63 is that once

the exercise of readjustment/delimitation is made on the basis of 2011

census figures, the same will be frozen till the relevant figures of the

first census taken after 2026 are available. Therefore, the exercise of

delimitation/readjustment of the seats in the Union Territory of J & K

was required to be made by the Delimitation Commission on the basis

of the figures of the 2011 census. In view of Section 63, further

readjustment can be carried out only after the publication of figures

from the census held after the year 2026.

44.Reliance placed on the opinion of the learned Attorney General of

India is misplaced as it deals only with the provisions of the A.P.

Reorganisation Act, 2014. The petitioners cannot rely upon the

answer given by Hon’ble Minister in the Lok Sabha as it deals with

delimitation of Constituencies in Telangana in the context of Article

170. In any event, the said opinion as well as the answer given by the

Hon’ble Minister have no bearing on the interpretation of the J&K

Reorganisation Act.

45.A vague attempt was made by the learned senior counsel

appearing for the petitioners to submit that the exercise which is

undertaken for the newly created Union territory of J & K was not

52

undertaken on the basis of the Uttar Pradesh Reorganisation Act,

2000 and Andhra Pradesh Reorganisation Act, 2014. In both the Acts,

there is no provision which is pari materia with clause (b) of sub-

Section (1) of Section 62 of the J&K Reorganisation Act which

amended the provisions of the Delimitation Act 2002 in its

applicability to the newly formed Union Territories by substituting the

year 2001 with 2011.

46.Thus, there is absolutely no merit in any of the contentions

raised by the petitioners. We may, however, clarify that the findings

rendered in the judgment 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. 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.

47.Hence, writ petition is dismissed with no order as to costs.

53

…....…………………J.

(Sanjay Kishan Kaul)

…….…………………J.

(Abhay S. Oka)

New Delhi;

February 13, 2023.

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