FACTS
The President of India on 5th and 6th August 2019 issued two Constitutional Orders under Article 370 (1) of the Constitution of which one declared all provisions of the Constitution including its amendments to be applicable to the State of Jammu and Kashmir subject to modifications to Article 367 and the other abrogated Article 370, respectively. Modifications made to Art. 367 included the addition of clause 4 which changed the expression “Constituent Assembly of the State” in the proviso of Art. 370 to “Legislative Assembly of the State”. Subsequently The Jammu and Kashmir Reorganisation Act, 2019 (here after referred to as ‘the Act’) was enacted and enforced with effect from 31st October 2019, dividing the erstwhile State of Jammu and Kashmir into two Union Territories namely the Union Territory of Jammu and Kashmir (here after referred to as ‘UT of J&K’) and the Union Territory of Ladakh comprising of Kargil and Leh Districts.
The Act brought about changes such as § 13 of the Act made Art. 239A applicable to the UT of J&K whereby the Parliament could create a legislature for the Union Territory. Under § 62 of the Act, the previously inapplicable Delimitation Act 2002 (here after referred to as ‘the 2002 Act’) became applicable to the UT of J&K. § 60 of the Act increased the number of seats in the Legislative Assembly of UT of J&K from 107 to 114 of which twenty-four seats will remain vacant as earlier, covered by the Pakistan Occupied territory. § 11 of this Act provides five and one constituencies as delimited Parliamentary Constituencies for the UT of J&K and Ladakh, respectively.
Subsequently, a Delimitation Commission (here after referred to as ‘DC’) was constituted by the Central Government on 6th March 2020 in exercise of § 3 of the 2002 Act for the purpose of delimitation of the Assembly and Parliamentary Constituencies in the UT of J&K and the States of Arunachal Pradesh, Assam, Manipur, and Nagaland. Following this, by two government notifications, dated third of March 2021 and twenty-first February 2022 the DC was amended to exclude the four Northeastern States and extend the term of the Chairperson from the initially fixed one year to two years and two months.
The petitioners challenged the legality of this DC. The Union of India filed a counter affidavit claiming the publication of a notification containing the orders of delimitation of Assembly and Parliamentary Constituencies of the UT of J&K under § 4 and § 9 of the 2002 Act, which were enforced from 5th May 2022 under § 62 of the Act declared by a Central Government notification.
ISSUES
Whether the constitution of the DC for the UT of J&K and the exercise of delimitation undertaken by the Commission as per the provisions of the 2002 Act, legal and valid?
CONTENTIONS
The Petitioners made various contentions in their Writ petition under Art. 32 regarding the delimitation exercise conducted in the UT of J&K. They challenged the legality of the increase of seven seats in Legislative Assembly of the Union Territory. Secondly, they challenged the amendments made to the notification of the Delimitation exercise to be conducted under the 2002 Act excluding the Northeastern from the ambit of the DC’s exercise. Lastly and mainly, they challenged the legality of the DC constituted by the notification of Sixth March 2020.
The petitioner argued that as per Articles 170 (3), 82, 330, 332 and the 84th Amendment Act, 2001, until the figures of the first census conducted after 2026 is published the number of seats in the Legislative Assembly of States remain unchanged based on the 2001 census and thus the delimitation conducted by the DC constituted on 6th March 2020 under the provisions of the 2002 Act is illegal and invalid. They argued that § 62 of the J&K Reorganisation Act was violative of Art. 170 (3) as readjustment to the number of constituencies can only be made by Art. 170. Another submission by the petitioners included the opinion provided by the Attorney General that Art. 170 will prevail over § 26 of the Andhra Pradesh Reorganisation Act, 2014 (here after referred to as ‘the AP Act’) which the petitioners argued applied to the provisions of the Act as well. Further, they argued that “a non-obstante clause in a statute cannot override the provisions of the Constitution” based on the precedent of Engineering Kamgar Union v. Electro Steel Casting. The answer given by the Lok Sabha Minister, Nityanand Rai that the number of legislative assembly seats would be readjusted only after the first census post 2026 is published was also submitted.
Next, the petitioners argued that the appointment and delimitation exercise of the delimitation commission was contrary to § 10 of the 2002 Act, which states that the delimitation exercise and the publication of its orders to be completed by 31st July 2008. Then they argued that the Respondents cannot treat different States differently, regarding the deletion of the four Northeastern States from the delimitation exercise based on a letter addressed by the Deputy Secretary of the Ministry of Home Affairs regarded as inadequate authority for notification modification. They further argued that § 59 to § 63 of the Act was contradictory with each other as it conferred the power of delimitation to both the Election Commission (here after referred to as ‘EC’) and the DC. Further the delimitation exercise conducted by the DC was usurpation of the EC’s functions as per § 11 of the 2002 Act. The deletion of the words “but does not include the State of Jammu and Kashmir” from § 2(f) of the 2002 Act by § 62 of the Act they argued violated Art. 14.
The Solicitor General appearing for the Respondents argued that there is a substantial delay in filing the Writ petition as the impugned notification creating the DC was released on 6th March 2020 and the changes that deleted the North Eastern States was made in 3rd March 2021, but the Writ petition was filed on 28th March, 2022 after more than two years of the notification it challenges. Furthermore, the delimitation order issued by the DC has been enforced since 20th March 2022 in exercise of § 10 of the 2002 Act, and therefore is a law that cannot be questioned by the court as under § 10 it is beyond the purview of questioning of the Court in addition to Art. 329 that bars the interference of Courts in matters of Delimitation of constituencies. The precedent of Meghraj Kothari v. Delimitation Commission which proved § 10 applicable to a remedy under Art. 226 was referred. To prove that § 60 and § 62 of the Act are not contradictory to each other the respondents submitted that the EC by a letter to the Union Government approved the delimitation exercise conducted by the appointed DC under § 62 of the Act. Lastly, they argued that Articles 81(3) and 170(3) were inapplicable to Union Territories as they were provision only for States.
RATIONALE
The following is the Ratio Decidendi provided by the Court for dismissing this writ petition.
The Supreme Court reasoned that by virtue of the Act, The Representation of the People Act, 1951 and the 2002 Act, was applicable to the UT of J&K. As Section 2(f) of the 2002 Act includes Union Territories having a Legislative Assembly within its purview the latter became applicable to the UT of J&K in addition to various other Central enactments incorporated in the Act. Based on the Validity of the 2002 Act, the Court clarified that the provisions in § 62(2) and § 60(1) of the Act meant the same delimitation exercise for the creation of ninety constituencies in the Union Territory and thus were not inconsistent with each other and the DC was a valid authority to conduct it. Additionally, the Delimitation exercise undertaken by the DC constituted by the March 6th, 2020, notification was based on the 2011 census figures as under § 62(1)(b) of the Act, the year 2001 was replaced by 2011.
The argument that the delimitation exercise had to be completed by 31st July 2018 under § 10 of the 2002 Act, was held not mandatory and less sacrosanct than a Presidential Order to defer the delimitation exercise in a State. Additionally, just because the legislature did not amend the time limit within this provision, the Act cannot become nugatory as a statute must be interpreted to make it workable and thus the contention was rejected.
Therefore, the Delimitation Exercise by the DC by the impugned Order of March Six, 2020, was held as legal and valid.
The Court upheld the extension of the appointment term of the Chairperson for the completion of the delimitation task once a DC was established. The Court also upheld the deletion of the Northeastern states from the extended period of the delimitation exercise based on § 10 of the 2002 Act and held the Deputy Secretary as competent authority for the modification issued. Additionally, it established a difference in status between the UT of J&K and the Northeastern States with 2011 census figures and 2001 census figures used respectively and as two unequal’s cannot be treated as equals, this contention along with the argument about violation Art. 14 was rejected.
The Court reasoned that since the Act, was not challenged in this writ petition, the Supreme Court could not interfere with the laws legislated by a competent legislature based on inference of implicit challenge of validity on the grounds of “presumption of Constitutionality of laws” which imposes the burden to prove the unconstitutionality on the person alleging it.
Based on Art. 4(2) any law made under Art. 3 will not be an amendment to the Constitution and provisions regarding the representation in the Parliament and legislature of the Union Territory can be created by such law.The Mangal Singh case held “the powers of Art. 4 wide enough to reduce the total members of the Legislative Assembly below the minimum prescribed under Art. 170 (1).” Additionally, the Court declared Art. 170 inapplicable to this case as it refers to States and not Union Territories whereas Art. 239A made applicable to the UT of J&K under § 13 of the Act, deals with the creation of Council of Ministers and legislatures for Union Territories of Puducherry and now J&K. Furthermore, the laws made under Art. 239A (1) is not regarded as an amendment. This rejects the contention about inconsistencies between Art. 170 and the Act.
The delay in filling the petition without any valid reason and the completion of the delimitation exercise with the publication of the draft order on 14th March 2022 also made the Court favour the respondents over the Petitioners. Additionally, none of the Articles 81, 82, 170, 330 and 332 deal with Union Territories and thus contention based on them were rejected. The reliance on the opinion of the Attorney General and Minister of Lok Sabha was not applicable to the Act as both their opinions pertain to the AP Act, and Art. 170.
Therefore, the Court dismissed the Writ petition as it found no merit in the contentions raised by the petitioners.
DEFECTS OF LAW
The main legal provisions contended in this case include the Delimitation Act, 2002 and the J&K Reorganisation Act, 2019. The contentions about the inconsistencies between the provisions of the Act and the Constitution was not addressed by the Court as this petition did not challenge the Act. However, this is one of the major defects in law that brought about confusion about the delimitation exercise challenged in this case. Most of the legal provisions in this case are Government notifications and Constitutional orders which are passed without much public and political discourse giving legal authority to political opinions of the majority party presents another defect in law. The ambiguous provision in the delimitation acts about the census figures of 2001, 2011 and 2026 creates further confusion. Another defect is the overlapping powers of the EC and the constituted DC in delimitation activities. These defects need to be addressed to provide legal clarity.
INFERENCE
Throughout this Judgement the Court has employed literal interpretation of statutes with emphasis given to the strength of the words for interpreting the law as intended by the legislature. The Act not only created two new Union Territories but also made sweeping changes that clearly represents the anxiety of the Central government to hold the lion’s share of administration and control of the strategically important Union Territory J&K. The Parliament through the Act cleverly navigated through various constitutional provisions to ensure its validity and prevent its nullification on the ground of it being an Amendment to the constitution.
By – Manushree Sarkar
B.A.LL.B (2023-2028)
Jindal Global Law School