Supreme Court seeks response from Central government in plea challenging delimitation exercise in Jammu & Kashmir

The Supreme Court on Friday sought the response of the Central government and the Election Commission of India to the plea challenging the notifications for the delimitation of assembly constituencies in the Union Territory (UT) of Jammu and Kashmir (J&K) [Haji Abdul Ghani Khan and Anr. v. Union of India and ors.].The petition filed by two Srinagar residents, Haji Abdul Gani Khan and Dr. Mohammad Ayub Mattoo challenged the increase in the number of seats from 107 to 114 in the UT claiming that the same is ultra vires Articles 81, 82, 170, 330 and 332 of the Indian Constitution and section 63 of the Jammu & Kashmir Re-organisation Act, 2019.A bench of Justices Sanjay Kishan Kaul and MM Sundresh directed the respondents to file their counter-affidavits but made it clear that the Court will not examine the contentions in the petition regarding the challenge to abrogation of Article 370 of the Constitution."Are you challenging (removal of) Article 370? You say no? What are you challenging. I don't want to get into the merits and demerits of sub-judice matters," Justice Kaul said referring to the fact that challenge to Article 370 was already pending before the top court. .The current petition filed through advocate Sriram Parakkat sought a declaration that the constitution of the Delimitation Commission to take up delimitation in J&K was violative of Article 14 of the Constitution of India. It was contended that the respondents had no power to establish a Delimitation Commission under Section 3 of the Delimitation Act since only the Election Commission could carry out the process of delimitation after the notification of the Parliamentary and Assembly Constituencies Delimitation Order, 2008.“Issuance of Notification by the Law and Legislative Department appointing the Delimitation Commission is without jurisdiction, unconstitutional and ultra vires to the election laws apart from J&K Reorganisation Act, 2019,” the petition stated..The plea also pointed out that Article 170 of the Constitution provides the next delimitation to be taken up after 2026, however, the Union Territory of J&K has been singled out.“..the 1st and the 2nd Respondents are now responsible for maintaining, sustaining and working of the statutory and constitutional provisions of the Constitution of India, under the much publicized “New Order” of One Nation One Constitution,” the petition reads. While relying on the case of Dr Subramanian Swamy v Director, CBI, the petitioner emphasised that conducting delimitation only for J&K was unconstitutional as it amounted to further classification."The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well-established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure," it was submitted..During the hearing today, the bench questioned Senior Advocate Ravi Shankar Jandhyala whether the petitioner is challenging removal of Article 370 of the Constitution or not. "No. After August 5, 2020, Kashmir became part of India," Jandhyala replied. "No, use (words) properly. It (Kashmir) was always a part of India. Just a special provision was removed," Justice Kaul responded. .Thereafter, the Solicitor General (SG) Tushar Mehta appearing for the respondents, submitted that the petitioner's prayer can be simplified in two folds: first, the delimitation can be conducted only by the Election Commission and not the Delimitation Commission. Second is about the census. The SG answered these two prayers stating that, "there are two types of delimitation. One is geographical which is conducted by the Delimitation Commission. Second concept which is by Election Commission is for reservation seats."The SG also urged the bench not to issue formal notice in the case..The Court then directed the respondents to file a counter affidavit within 6 weeks and directed the petitioner to file a rejoinder thereafter within 2 weeks. The matter will be listed on August 30, 2022. .[Read live reportage of hearings here]