Summary
Residents of the Union Territory of Jammu and Kashmir challenged under Article 32 the March 2020 constitution of a Delimitation Commission for the Union Territory, the exclusion of four north-eastern States from its remit and the increase of Assembly seats from 107 to 114 under the Jammu and Kashmir Reorganisation Act, 2019, invoking the freeze in Article 170(3). The Supreme Court dismissed the petition: the Reorganisation Act and the 2019 Article 370 orders were not challenged; Article 170 governs State legislatures, not a Union Territory legislature under Article 239A; Section 62 lawfully entrusted readjustment on the 2011 census to a Delimitation Commission, the 2008 deadline being directory; the final order was unchallenged; and the petition was belated.
Issues
- Whether Article 170(3) of the Constitution, which bars readjustment of State Legislative Assembly constituencies until the first census after 2026, applies to the Legislative Assembly of the Union Territory of Jammu and Kashmir created under Article 239A.
- Whether the Central Government could constitute a Delimitation Commission under the Delimitation Act, 2002 in March 2020 for the Union Territory, exclude four north-eastern States from its purview, extend its chairperson's term, and have it readjust constituencies on the 2011 census.
Provisions considered
- Articles 3, 4, 170, 239A, 81, 82, 330 and 332, Constitution of IndiaParliament may by law under Articles 3 and 4 form Union Territories and provide for representation in their legislatures without amending the Constitution under Article 368; a Union Territory legislature is created under Article 239A in Part VIII, so Article 170 in Part VI, and Articles 81, 82, 330 and 332 which concern Parliament and State legislatures, have no application to it. (¶¶ 16, 17, 18, 19, 20, 23, 40)
- Sections 13, 14, 60, 61, 62 and 63, Jammu and Kashmir Reorganisation Act, 2019Section 14 created a Legislative Assembly of 107 seats with 24 kept vacant for Pakistan-occupied territory, Section 60 increased the seats to 114 and Section 62 mandated that the resulting readjustment into 90 constituencies, and of parliamentary constituencies, be carried out by a Delimitation Commission under the Delimitation Act, 2002 on the 2011 census, with Section 63 freezing the position thereafter until the first census after 2026. (¶¶ 21, 22, 25, 26, 27, 29, 31, 43)
- Sections 2(f), 3, 4, 9, 10(2), 10(6) and 10A, Delimitation Act, 2002The Act was extended to the Union Territory from 31.10.2019 with 2011 substituted for 2001 in Sections 4 and 9; the 31.07.2008 target in Section 10(6) is an 'endeavour' and not mandatory, Section 10A permits deferral, and a reading that left the Central Government powerless to constitute a Commission would render Section 62 of the Reorganisation Act nugatory; final orders under Section 10(1) have the force of law and were not challenged. (¶¶ 28, 29, 33, 34, 35, 38)
Held
- A constitutional court cannot examine the validity of a statute without specific pleadings setting out the grounds of challenge, and the petitioners expressly declined to challenge the Reorganisation Act or the 2019 Presidential Order and declaration; the argument that the increase in seats and the delimitation violate Article 170(3) is misconceived because that Article does not govern Union Territory legislatures. (¶¶ 13, 14, 15, 23, 40, 41)
- The exercise undertaken by the Commission constituted on 06.03.2020 is the readjustment contemplated by Section 62(2) and (3), which is nothing but the delimitation under Section 60(1) necessitated by the increase from 83 to 90 contestable seats, to be done on the 2011 census; extension of the chairperson's tenure until completion was unobjectionable, and the four north-eastern States, where delimitation had been deferred under Section 10A owing to litigation over 2001 census discrepancies and where no 2011 substitution applies, are not similarly situated, so Article 14 is not violated. (¶¶ 27, 29, 31, 32, 36, 37)
- The 2008 Delimitation Order merely reproduced the 1976 and 1995 orders, which the Reorganisation Act expressly modified by its Second and Third Schedules; the Attorney General's opinion on the Andhra Pradesh Reorganisation Act and a ministerial answer concerning Telangana have no bearing; the challenge to the March 2020 notification filed in March 2022, after the draft order had been published, was belated and the final order of 05.05.2022 brought into force on 20.05.2022 was not challenged. (¶¶ 38, 39, 42, 44, 45)
Result
Writ petition dismissed without costs; findings rendered on the footing that the exercise of power under clauses (1) and (3) of Article 370 in 2019 is valid, that issue being pending before the Court in other petitions, and nothing in the judgment to be construed as an imprimatur to that exercise.