Supreme Court Upholds Delimitation Commission for Jammu and Kashmir: Haji Abdul Gani Khan vs. Union of India (2023) INSC 112 (13 February 2023)

Date of the Judgment: 13 February 2023
Citation: (2023) INSC 112
Judges: Sanjay Kishan Kaul, J., Abhay S. Oka, J.
Can the Union Government constitute a Delimitation Commission for the newly formed Union Territory of Jammu and Kashmir? The Supreme Court of India recently addressed this question, focusing on the legality of the delimitation process undertaken in the region. The court upheld the government’s decision, confirming the validity of the Delimitation Commission’s actions. This judgment clarifies the constitutional procedures for reorganizing states into Union Territories and the subsequent delimitation of constituencies.

Case Background

The case revolves around the reorganization of the former state of Jammu and Kashmir into two Union Territories: Jammu and Kashmir, and Ladakh. This was done through the Jammu and Kashmir Reorganisation Act, 2019, which came into effect on 31st October 2019. Following this, the Delimitation Act, 2002, was extended to the Union Territory of Jammu and Kashmir. The Central Government then constituted a Delimitation Commission on 6th March 2020 to redraw the boundaries of Assembly and Parliamentary constituencies in the newly formed Union Territory. The petitioners challenged this action, arguing that it violated constitutional provisions and existing delimitation orders. The petitioners in this case, Haji Abdul Gani Khan & Anr., sought to challenge the constitution of the Delimitation Commission and the delimitation exercise undertaken by it. They argued that the delimitation exercise was in violation of Article 170 of the Constitution, which deals with the composition of State Legislative Assemblies, and that the Delimitation Commission was illegally constituted. They also challenged the increase in the number of seats in the Legislative Assembly of the Union Territory of Jammu and Kashmir.

Timeline

Course of Proceedings

The petitioners challenged the increase in the number of seats in the Legislative Assembly of the Union Territory of Jammu and Kashmir, the exclusion of certain North-Eastern states from the purview of the Delimitation Commission, and the constitution of the Commission itself. They argued that the Delimitation Commission was appointed by usurping the jurisdiction of the Election Commission of India and that it violated constitutional provisions. The Union of India defended the constitution of the Delimitation Commission and the delimitation exercise. They argued that the Delimitation Act, 2002, was validly extended to the Union Territory of Jammu and Kashmir, and that the delimitation exercise was necessary for the proper functioning of the new Union Territory. The Election Commission of India also filed a counter affidavit supporting the delimitation exercise.

Legal Framework

The Supreme Court examined several key legal provisions:
✓ Article 3 of the Constitution of India: This article empowers the Parliament to form new States and alter the areas, boundaries, or names of existing States, which includes the power to form new Union Territories.
✓ Article 4 of the Constitution of India: This article states that any law made under Article 3 shall contain provisions for the amendment of the First and Fourth Schedules of the Constitution, and such a law shall not be deemed to be an amendment of the Constitution for the purposes of Article 368.
✓ Article 170 of the Constitution of India: This article deals with the composition of the Legislative Assemblies of States. The petitioners argued that the delimitation exercise violated the second proviso to clause (3) of this article.
✓ Article 239A of the Constitution of India: This article empowers Parliament to create a body to function as a legislature for certain Union Territories, including Puducherry and now Jammu and Kashmir.
✓ The Delimitation Act, 2002: This act provides for the delimitation of Parliamentary and Assembly constituencies. It was extended to the Union Territory of Jammu and Kashmir by the J&K Reorganisation Act, 2019.
✓ The Jammu and Kashmir Reorganisation Act, 2019: This act reorganized the state of Jammu and Kashmir into two Union Territories and made provisions for the delimitation of constituencies.
✓ Section 60 of the J&K Reorganisation Act, 2019: This section deals with the increase in the number of seats in the Legislative Assembly of the Union Territory of Jammu and Kashmir.
✓ Section 62 of the J&K Reorganisation Act, 2019: This section makes the Delimitation Act, 2002, applicable to the Union Territory of Jammu and Kashmir and mandates the Delimitation Commission to carry out the delimitation exercise.
✓ Section 10 of the Delimitation Act, 2002: This section deals with the publication of orders and their date of operation. Sub-section (2) of this section creates a bar on any Court questioning the order passed under sub-section (1) of Section 10.
✓ Section 10A of the Delimitation Act, 2002: This section permits the postponement of the delimitation exercise in certain contingencies.

Arguments

The petitioners raised several arguments against the constitution of the Delimitation Commission and the delimitation exercise. The arguments are summarized below:

• Petitioners’ Main Submission 1: The delimitation exercise violates Article 170 of the Constitution.

  • Sub-submission 1.1: The second proviso to clause (3) of Article 170 of the Constitution prohibits readjustment of the total number of seats in the Legislative Assembly until the figures for the first census taken after 2026 are published. The delimitation exercise undertaken by the Delimitation Commission violates this provision.

    “That the 2nd 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.”

  • Sub-submission 1.2: Similarly, the third proviso to Article 82 and Articles 330 and 332 impose similar restrictions on readjustment of seats in the House of the People and reservation of seats for Scheduled Castes and Scheduled Tribes until the figures of the first census conducted after 2026 are available.

    “Similarly, the 3rd 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;”

  • Sub-submission 1.3: The government cannot undermine the purpose of the Constitution (84th Amendment Act, 2001), which substituted the year 2026 for the year 2000 in the relevant provisos.

    “Earlier, the embargo was applicable till figures of the first census taken after the year 2000 were available. It was modified by the Constitution (84th Amendment Act, 2001) by substituting the year 2026 for the year 2000. The Government cannot undermine the objects and reasons for the said amendment;”

  • Sub-submission 1.4: The effort to divide the Union Territory of J&K into territorial constituencies is illegal and uncalled for, as the number of members of the Legislative Assembly of the States must remain the same until the figures of the first census conducted after the year 2026 become available.

    “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;”

  • Sub-submission 1.5: Even 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.

    “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.”

  • Sub-submission 1.6: 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.

    “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;”

  • Sub-submission 1.7: 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.

    “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;”

• Petitioners’ Main Submission 2: The Delimitation Commission was illegally constituted.

  • Sub-submission 2.1: The Delimitation Commission has been appointed by usurping the jurisdiction of the Election Commission of India, violating sub-Sections (2) and (5) of Section 60 of the J&K Reorganisation Act.

    “The petitioners contended that the Delimitation Commission has been appointed under the notification dated 6th 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.”

  • Sub-submission 2.2: The Delimitation Act, 2002 contemplates the constitution of a single Delimitation Commission, not multiple commissions.

    “The Delimitation Act, 2002 contemplates the constitution of a single Delimitation Commission and not multiple Commissions.”

  • Sub-submission 2.3: The appointment of the Delimitation Commission under the order dated 6th March 2020 is contrary to Section 3 of the Delimitation Act, which requires the Commission to be constituted at the earliest, and Section 10(6), which requires the Commission to complete its exercise and publish orders no later than 31st July 2008.

    “In any event, the appointment of the Delimitation Commission under the order dated 6th 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 31st July 2008.”

  • Sub-submission 2.4: The delimitation order of 2008 published by the Election Commission cannot be deviated from.

    “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;”

• Petitioners’ Main Submission 3: The exclusion of certain North-Eastern states from the purview of the Delimitation Commission is illegal.

  • Sub-submission 3.1: The States of Arunachal Pradesh, Assam, Manipur, and Nagaland were illegally excluded from the purview of the notification dated 6th March 2020. The action was based on a letter from a Deputy Secretary and not a valid legal basis.

    “The States of Arunachal Pradesh, Assam, Manipur and Nagaland were illegally excluded from the purview of the notification dated 6th March 2020. The said action was taken on the basis of the letter dated 22nd 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 6th March 2020;”

• Petitioners’ Main Submission 4: Sections 59 to 63 of the J&K Reorganisation Act are contradictory and violate the Constitution.

  • Sub-submission 4.1: These sections confer the power of delimitation on both the Election Commission and the Delimitation Commission, making them illegal.

    “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 power of delimitation both on the Election Commission and the Delimitation Commission which makes these Sections completely illegal.”

  • Sub-submission 4.2: The act of omitting the words “but does not include the State of Jammu and Kashmir” from Section 2(f) of the Delimitation Act, 2002, infringes Article 14 of the Constitution.

    “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;”

Issues Framed by the Supreme Court

The Supreme Court addressed the following key issues:

1. Whether the constitution of the Delimitation Commission for the Union Territory of Jammu and Kashmir was legal and valid.
2. Whether the delimitation exercise undertaken by the Delimitation Commission was in violation of constitutional provisions, particularly Article 170.
3. Whether the exclusion of certain North-Eastern states from the purview of the Delimitation Commission was valid.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered several authorities in its judgment, categorized by the legal points they addressed:

On the Power of Parliament to Reorganize States and Union Territories

• Mangal Singh & Anr. v. Union of India [1967 (2) SCR 109] (Supreme Court of India): This case clarified that the power under Article 4 of the Constitution is wide enough to reduce the total members of the Legislative Assembly below the minimum prescribed by clause (1) of Article 170.

On the Applicability of Delimitation Act

• Delimitation Act, 2002: The court noted that this act was made applicable to the Union Territory of Jammu and Kashmir by the J&K Reorganisation Act, 2019.
• The Jammu and Kashmir Reorganisation Act, 2019: The court considered various sections of this act, including Sections 14, 60, and 62, which provided for the reorganization of the state and the delimitation of constituencies.

On the Bar on Court Interference in Delimitation Matters

• Meghraj Kothari v. Delimitation Commission & Ors. [1967 (1) SCR 400] (Supreme Court of India): This case established that orders passed under the Delimitation Act are treated as law and cannot be questioned in any court.

On the Interpretation of Statutes

• Engineering Kamgar Union v. Electro Steel Casting [2004 (6) SCC 36] (Supreme Court of India): This case was cited by the petitioners to argue that a non-obstante clause in a statute cannot override the provisions of the Constitution. The court did not find this case relevant in the context of the present matter.

Authorities Considered by the Court

Judgment

The Supreme Court dismissed the writ petition, upholding the validity of the Delimitation Commission and the delimitation exercise. The court rejected all the arguments made by the petitioners. The court’s reasoning is summarized below:

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Mangal Singh & Anr. v. Union of India [1967 (2) SCR 109]*: The court followed this precedent to affirm the wide powers of Parliament under Article 4 to create new Union Territories and make necessary provisions for their governance.
• Delimitation Act, 2002: The court interpreted this act in conjunction with the J&K Reorganisation Act, 2019, to establish the legality of the Delimitation Commission’s actions in the Union Territory of Jammu and Kashmir.
• The Jammu and Kashmir Reorganisation Act, 2019: The court relied on this act to validate the delimitation exercise, noting that it amended the Delimitation Act, 2002, to apply to the newly formed Union Territory.
• Meghraj Kothari v. Delimitation Commission & Ors. [1967 (1) SCR 400]*: The court upheld the principle established in this case that orders passed under the Delimitation Act have the force of law and cannot be questioned in any court.
• Engineering Kamgar Union v. Electro Steel Casting [2004 (6) SCC 36]*: The court distinguished this case, finding it irrelevant to the issues at hand.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by several factors, primarily focusing on the constitutional framework and the specific circumstances of the reorganization of Jammu and Kashmir:

• Constitutional Provisions: The Court emphasized the distinction between the States and Union Territories as outlined in the Constitution. It highlighted that Article 170, which governs the composition of State Legislative Assemblies, does not apply to Union Territories. The Court underscored that the Legislative Assembly of the Union Territory of Jammu and Kashmir is governed by Article 239A and the laws enacted by the Parliament under it.
• J&K Reorganisation Act, 2019: The Court underscored that the J&K Reorganisation Act, 2019, was enacted by the Parliament under Articles 3, 4, and 239A of the Constitution. This Act not only created the Union Territories of Jammu and Kashmir and Ladakh but also amended the Delimitation Act, 2002, to apply to the Union Territory of Jammu and Kashmir. It mandated that the delimitation exercise should be carried out on the basis of the 2011 census figures.
• Delimitation Act, 2002: The Court noted that the Delimitation Act, 2002, was made applicable to the Union Territory of Jammu and Kashmir by the J&K Reorganisation Act. The Court also pointed out that the Delimitation Act, 2002, as amended by the J&K Reorganisation Act, 2019, required the delimitation exercise to be conducted on the basis of the 2011 census figures.
• Legislative Intent: The Court interpreted the J&K Reorganisation Act to reflect the Parliament’s intention to ensure a proper delimitation of constituencies in the newly formed Union Territory. The Court observed 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.
• Specific Circumstances: The Court acknowledged the unique circumstances of the reorganization of Jammu and Kashmir and the need for a delimitation exercise to ensure proper representation in the newly formed Union Territory. It also noted that the exclusion of certain North-Eastern states from the purview of the Delimitation Commission was valid due to the specific circumstances and pending litigations in those states.
• Bar on Court Interference: The Court reiterated the principle that orders passed under the Delimitation Act have the force of law and cannot be questioned in any court. It relied on the Constitution Bench decision in the case of Meghraj Kothari v. Delimitation Commission & Ors. [1967 (1) SCR 400] to emphasize this point.

Conclusion

The Supreme Court’s judgment in Haji Abdul Gani Khan vs. Union of India (2023) INSC 112 is a significant ruling that clarifies the constitutional procedures for reorganizing states into Union Territories and the subsequent delimitation of constituencies. The court upheld the validity of the Delimitation Commission for Jammu and Kashmir, emphasizing the distinction between state legislatures and legislatures of Union Territories. The judgment also affirmed the Parliament’s power to reorganize states and create Union Territories, as well as the legal validity of the Delimitation Act, 2002, as extended to the Union Territory of Jammu and Kashmir by the J&K Reorganisation Act, 2019. In essence, the court underscored the supremacy of parliamentary legislation in the context of Union Territories and the limited scope for judicial intervention in delimitation matters.

Flowchart of the Delimitation Process