HAJI ABDUL GANI KHAN & ANR. versus UNION OF INDIA & ORS. on 13 February 2023

[2023] 5 S.C.R. 503

HAJI ABDUL GANI KHAN & ANR.

v.

UNION OF INDIA & ORS.

(Writ Petition (Civil) No. 237 of 2022)

FEBRUARY 13, 2023

[SANJAY KISHAN KAUL AND ABHAY S. OKA, JJ.]

Constitution of India – Arts.170 and 239A – Jammu andKashmir Reorganisation Act, 2019 – s.13 – Art. 170 forming partof Chapter III of Part VI of the Constitution under the title “TheState Legislature” – Issue of applicability of Art.170 to the UnionTerritory of J&K – Held: As far as the Legislative Assembly of theUnion territory of J&K is concerned, Art.170 will have noapplication as it forms a part of Chapter III of Part VI which dealswith only the State Legislature – It has no application to theLegislatures of Union Territories – The reason is that the LegislativeAssemblies of the concerned Union Territories will be governed bythe law made by the Parliament in accordance with Art.239A andnot by the provisions of Chapter III of Part VI – By virtue of s.13 ofthe J&K Reorganisation Act, with effect from 31[st] October 2019,Art. 239A became applicable to the Union Territory of J&K.

Delimitation Act, 2002 – s.9 – Jammu and KashmirReorganisation Act, 2019 – ss.60 and 62 – Action of constituting aDelimitation Commission for the Union Territory of Jammu andKashmir under provisions of the Delimitation Act, 2002 and exerciseof delimitation undertaken by the Commission – Readjustment ofseats – Legality and validity of – Held: Part V of the J&KReorganisation Act deals with the Delimitation of Constituencies –By virtue of clause (a) of sub-section (1) of s.62, the provisions ofthe Delimitation Act, 2002 were made applicable to the UnionTerritory of J & K with effect from 31[st] October 2019 – Sub-section(1) of s.60 provides that the exercise of the division of the newlyconstituted Union Territory into 90 assembly constituencies andproviding for reservation may be undertaken by the ElectionCommission – However, the purport of s.62 is that if a DelimitationCommission is constituted under the Delimitation Act 2002, theexercise provided by clauses (a) to (c) of sub-section (1) of s.60

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Ashall be carried out by the Delimitation Commission – Sub-section(2) of s.62 refers to readjustment of the constituencies – Purport ofsub-section (2) of s.62 is that readjustment means the creation of90 constituencies in the newly set up Union territory – Thus, theprocess of readjustment contemplated by sub-section (2) of s.62 isnothing but the exercise of delimitation under sub-section (1) ofBs.60.

Delimitation Act, 2002 – s.9 – Jammu and KashmirReorganisation Act, 2019 – ss.62 and 63 – Constitution ofDelimitation Commission for the Union Territory of Jammu andKashmir – Exercise of delimitation/ readjustment of the constituenciesCundertaken on the basis of 2011 census figures – Challenge to –Held: By virtue of clause (b) of sub-section (1) of s.62 of the J&KReorganisation Act, the year 2001 appearing in sub-section (1) ofs.9 of the Delimitation Act, 2002 will have to be read as 2011 –Thus, nothing illegal about the exercise of delimitation/ readjustmentDof the constituencies undertaken by the Delimitation Commissionfor purposes of dividing the Union Territory into 90 constituencieson the basis of the 2011 census figures – Clause (b) of sub-Section(1) of s.62 of the J&K Reorganisation Act amended the DelimitationAct, 2002 by providing that words and figures ‘census held in theyear 2001’ appearing in the Delimitation Act shall be construed asE‘census held in the year 2011’ – To its application to the Unionterritory of J & K, the year 2001 in sub-section (1) of s.9 of theDelimitation Act, 2002 has been substituted by the year 2011 andtherefore, distribution of seats in the House of the People and seatsassigned to the Legislative Assembly will have to be readjusted onFthe basis of 2011 census and the delimitation will have to be carriedout on the basis of the figures of the census held in the year 2011 –Effect of s.63 is that once the exercise of readjustment/delimitationis made on the basis of 2011 census figures, the same will be frozentill the relevant figures of the first census taken after 2026 are available – Therefore, the exercise of delimitation/readjustment ofGthe seats in the Union Territory of J & K was required to be madeby the Delimitation Commission on the basis of the figures of the2011 census – In view of s.63, further readjustment can be carriedout only after the publication of figures from the census held afterthe year 2026.H

Delimitation Act, 2002 – ss.10(6) and 10A – Jammu andKashmir Reorganisation Act, 2019 – s.62 – Action of constituting aDelimitation Commission for the Union Territory of Jammu andKashmir – Delimitation exercise – Time limit provided u/s.10(6) – Ifmandatory – Held: s.10A of the Act, 2002 itself indicates that thetime limit of 31[st] July 2008 fixed under sub-Section (6) of s.10 is notsacrosanct as it confers a power on the Hon’ble President to deferthe delimitation exercise in a State under certain circumstances –Sub-section (6) of s.10 of the Delimitation Act, 2002 uses the word“endeavour” – Thus, the time limit provided in sub-section (6) ofs.10 was never intended to be mandatory – While amending s.2(f)of the Delimitation Act by the J&K Reorganisation Act, sub-section(6) of s.10 has not been amended for enlarging the period providedthereunder – However, the intention of the legislature as reflectedin sub-sections (2) and (3) of s.62 of the J&K Reorganisation Act iscrystal clear – The very fact that the duty of making the readjustmentas per sub-sections (2) and (3) of s.62 on the basis of the 2011census figures has been entrusted to the Delimitation Commissionsuggests that the legislature intended that the DelimitationCommission for the Union Territory of Jammu & Kashmir will remainunaffected by the requirement of completing the exercise by the endof July 2008 – The provisions of sub-Sections (2) and (3) of s.62will have to be interpreted in a manner that gives effect to theintention of the legislature – If it is held that due to the failure of thelegislature to modify the time limit provided in sub-Section (6) ofs.10 of the Delimitation Act, 2002, the Central Government ispowerless to appoint a Delimitation Commission for the newlycreated Union territory, the provisions of s.62 of the J&KReorganisation Act will be rendered nugatory.

Delimitation Act, 2002 – Delimitation Commission for theUnion Territory of Jammu and Kashmir – Chairperson of theDelimitation Commission – Term of appointment of the Chairperson– Under notification dated 6[th] March 2020, appointment of theChairperson of the Delimitation Commission who was a retired Judgeof this Court was for a period of one year – By notification dated3[rd] March 2021, the said period was extended up to two years – Bythird impugned notification dated 21[st] February 2022, the saidperiod of two years was extended to two years and two months –Held: Once the Delimitation Commission was established, there is ABC

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Anothing wrong if the Central Government extended the period ofappointment of the Chairperson till the task of delimitation/readjustment was completed – Delimitation Act, 2002 is silent aboutthe term of the appointment of the Chairperson.

Constitution of India – Arts. 3, 4 and 239A – Conversion ofBan existing State into one or more Union territories – Power of theParliament – Conjoint reading of Arts. 3,4 and 239A – Held:Parliament by making a law can convert an existing State into oneor more Union territories.

Practice and Procedure – Constitutional validity of a statuteC– Challenge to – Challenge has to be specifically pleaded – Held:When a party wants to challenge the constitutional validity of astatute, he must plead in detail the grounds on which the validity ofthe statute is sought to be challenged – The Constitutional Courtscannot interfere with the law made by the Legislature unless it isspecifically challenged by incorporating specific grounds ofDchallenge in the pleadings – The reason is that there is always apresumption of the constitutionality of laws – The burden is alwayson the person alleging unconstitutionality to prove it – AConstitutional Court cannot casually interfere with legislation madeby a competent Legislature only by drawing an inference from theEpleadings that the challenge to the validity is implicit.

Interpretation of Statutes – Held: A statute cannot beinterpreted in a manner that will render some of its provisions otiose– A statute must be construed and interpreted in such a manner asto make it workable.FDoctrines/ Principles – Equality – Two unequals cannot betreated as equals.

Words and Phrases – Word “endeavour” – Use of the wordin Sub-section (6) of s.10 of the Delimitation Act, 2002.

Dismissing the writ petition, the CourtGHELD: 1. Issue of applicability of Article 170 having thetitle “Composition of the Legislative Assemblies” to the UnionTerritory of J & K.

1.1. Article 170 forms part of Chapter III under the titleH“The State Legislature”. Chapter III has been incorporated in Part VI of the Constitution which deals with the States. Thoughmuch emphasis was laid on the violation of the provisionscontained in the second Proviso to Clause (3) of Article 170 bythe petitioners, but the said Article does not deal with thelegislatures of Union Territory at all. Articles 239A and 239AAwhich are included in Part VIII of the Constitution are the Articlesthat deal with the creation of a body to function as legislature andCouncil of Ministers for certain Union Territories. [Para 18][532-B-D]

1.2. Article 239A as it originally stood provided thatParliament may by law create for the Union Territory ofPuducherry a body to function as a Legislature for the UnionTerritory or a Council of Ministers or both. Such a body to act asa Legislature of the Union Territory covered by Article 239Amay be elected or partly nominated and partly elected. By virtueof Section 13 of the J&K Reorganisation Act, with effect from31[st] October 2019, Article 239A became applicable to the UnionTerritory of J and K. As noted by clause (2) of Article 239A, thelaw contemplated by clause (1) of Article 239A shall not be deemedto be an amendment to the Constitution for the purposes of Article368 notwithstanding that it contains any provision which amendsor has the effect of amending the Constitution. [Para 18][532-G-H; 533-A-B]

1.3. On a conjoint reading of Articles 3,4 and 239A, it isfound that:- (a) Parliament by making a law can convert an existingState into one or more Union territories; (b) Parliament isempowered by law to create a body of legislature for the Unionterritories of Puducherry and J&K. Accordingly, sub-Section (2)of Section 14 of the J & K Reorganisation Act provides that thereshall be a Legislative Assembly for the Union Territory of J &K.; and (c) Even if the law made by Parliament creating a body oflegislature for Union territories of Puducherry and J&K has theeffect of amending certain parts of the Constitution, it shall notbe deemed to be an amendment of the Constitution for thepurposes of Article 368. [Para 19][533-B-E]

1.4. As far as the Legislative Assembly of the Unionterritory of J & K is concerned, Article 170 will have no AB

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Aapplication as it forms a part of Chapter III of Part VI which dealswith only the State Legislature. It has no application to theLegislatures of Union Territories. The reason is that theLegislative Assemblies of the concerned Union Territories willbe governed by the law made by the Parliament in accordancewith Article 239A and not by the provisions of Chapter III of PartBVI. As Article 170 is not applicable to the Legislature of the UnionTerritory of J & K, the main thrust of the argument that certainprovisions of the J&K Reorganisation Act and actions takenthereunder are in conflict with Article 170 and in particular Clause(3) thereof is clearly misconceived and deserves to be rejected.C[Para 23][534-D-F]

Issue of delimitation of constituencies of the LegislativeAssembly of the Union territory of J and K.

2.1. There were two earlier enactments dealing with theestablishment of the Delimitation Commission. The first one wasDthe Delimitation Commission Act, 1962 and the second one wasthe Delimitation Act, 1972. Both the Acts were not applicable tothe State of Jammu and Kashmir as the definition of the Stateincorporated in both Acts specifically excluded the State of Jammuand Kashmir. The same is the case with the Delimitation Act,E2002. Section 3 of the J&K RP Act laid down the requirement ofthe establishment of the Delimitation Commission which providedthat the Delimitation Commission shall distribute the seats inthe Legislative Assembly to single member territorialconstituencies and delimit them having regard to various factorsmentioned in sub-section (2) of Section 3. Section 4-B of the J&KFRP Act provided for the Delimitation Commission to pass an orderregarding the delimitation of constituencies and publish the same.In fact, the Delimitation of Assembly Constituencies Order, 1995was issued which was applicable to the State of Jammu andKashmir. [Para 24][534-G-H; 535-A-B]G

2.2. By virtue of sub-section (5) of Section 14 of the J&KReorganisation Act, the said Delimitation Order of 1995 wasamended as provided in the Third Schedule thereof. The ThirdSchedule contains the details of the amendments to thedelimitation of the assembly constituencies made by the said H

Delimitation Order of 1995 in relation to the existing 83 assemblyconstituencies out of a total 107 as provided in sub-section (3) ofSection 14. 24 constituencies covered by the Pakistan occupiedarea were obviously not covered by the Delimitation Order. Thus,by virtue of sub-section (5) of Section 14, the delimitation of 83constituencies of the Legislative Assembly of the Union Territoryof J & K was incorporated in the form of the Third Schedulewhich sets out the boundaries of and the areas incorporated inthe new individual 83 constituencies. [Para 25][535-D-F]

2.3. Part V of the J & K Reorganisation Act deals with theDelimitation 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 witheffect from 31[st] October 2019. [Para 26][535-F-G]

2.4. The delimitation of 83 constituencies of the UnionTerritory was made under the J&K Reorganisation Act and wasincorporated in the Third Schedule as provided in sub-section(5) of Section 14. By virtue of the mandate of sub-section (1) ofSection 60, the total number of seats in the Legislative Assemblyof the Union Territory was required to be increased from 107 to114. Thus, by excluding 24 seats from Pakistan occupied areas,the mandate was to increase the seats from 83 to 90. For givingeffect to the increase in the number of seats as aforesaid, theexercise of delimitation for dividing the Union Territory into 90constituencies and determining the number of seats to bereserved for Scheduled Castes and Schedule Tribes was requiredto be undertaken. Sub-section (1) of Section 60 provides that thesaid delimitation exercise may be undertaken by the ElectionCommission. However, sub-section (2) of Section 62 providesthat the readjustment of the constituencies as provided underSection 60 in the successor Union Territory of J & K intoassembly constituencies shall be carried out by the DelimitationCommission to be constituted under the Delimitation Act, 2002as amended by the J&K Reorganisation Act. Sub-section (1) ofSection 60 provides that the exercise of the division of the newlyconstituted Union Territory into 90 assembly constituencies and A

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Aproviding for reservation may be undertaken by the ElectionCommission. However, the purport of Section 62 is that if aDelimitation Commission is constituted under the DelimitationAct 2002, the exercise provided by clauses (a) to (c) of sub-section(1) of Section 60 shall be carried out by the DelimitationCommission. However, sub-section (2) of Section 62 refers toBthe readjustment of the constituencies. But, the purport of sub-section (2) of Section 62 is that the readjustment means thecreation 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 underCsub-section (1) of Section 60. [Para 27][539-A-F]

2.5. The provisions of the Delimitation Act 2002 indicatewhat is readjustment. By virtue of Clause (b) of sub-section (1)of Section 62 of the J&K Reorganisation Act, the year 2001 standssubstituted by the year 2011 in relation to the LegislativeDAssembly of the Union Territory of J & K. Under Section 9 ofthe Delimitation Act, 2002, a specific power has been conferredon the Delimitation Commission of conducting the Delimitationexercise. By virtue of clause (b) of sub-section (1) of Section 62of the J&K Reorganisation Act, the year 2001 appearing in sub-section (1) of Section 9 of the Delimitation Act, 2002 will have toEbe read as 2011. Therefore, the Delimitation Commissionestablished under the Order dated 6[th] March 2020 had toundertake the exercise of delimitation or readjustment on thebasis of the census figures of 2011 as the earlier exercise ofdelimitation of the constituencies of the erstwhile State was not Fmade on the basis of the census figures of 2011. For the reasonsstated above, there is nothing illegal about the exercise ofdelimitation/readjustment of the constituencies undertaken bythe Delimitation Commission for the purposes of dividing theUnion Territory into 90 constituencies on the basis of the 2011census figures. [Paras 28 and 29][539-G; 540-D-E; 541-F-H; 542-GA]

2.6. In the First Schedule to the RP Act of 1950, a total of 6seats were allocated to the erstwhile State of Jammu and Kashmirwith no reservation for Scheduled Castes and Schedule Tribes.

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Section 10 of the J&K Reorganisation Act provides that out ofthe 6 seats allocated to the erstwhile State, 5 will be allocated tothe Union Territory of J & K and one will be to the Union Territoryof Ladakh. That is how Section 11 provides thereof that theDelimitation of Parliamentary Constituencies Order, 1976 standsamended as provided in the Second Schedule of the said Act.Thus, the delimitation of the five parliamentary constituencies ofthe Union Territory of J & K and one constituency of the UnionTerritory of Ladakh was made by virtue of Section 11 as providedin the Second Schedule. [Para 30][542-B-D]

2.7. Clause (c) of sub-section (1) of Section 60 of the J&KReorganisation Act provides that considering the increase in thenumber of seats of the Legislative Assembly, the adjustments inthe boundaries and description of the extent of the ParliamentaryConstituencies in each Union Territory may be made by theElection Commission. Sub-section (3) of Section 62 provides thatreadjustment of the constituencies as provided in Section 11 inthe successor Union Territories into Parliamentary Constituenciesshall be carried out by the Delimitation Commission. Thereadjustment referred to in sub-section (3) of Section 62 is theadjustment of boundaries and description of the extent of theParliamentary Constituencies as provided in sub-section (1) ofSection 60. This became necessary as a result of the requirementof readjustment /delimitation of 90 constituencies of theLegislative Assembly. Therefore, there is no illegality associatedwith the delimitation /readjustment of Parliamentaryconstituencies of the Union Territory of J & K undertaken bythe Delimitation Commission. [Para 31][542-E-G]

Legality of the appointment of the Delimitation Commissionby the Notification of 6th March 2020

3.1. When the impugned notification dated 6[th] March 2020constituting the Delimitation Commission requires theDelimitation Commission to undertake the exercise of thedelimitation of Assembly and Parliamentary Constituencies in theUnion Territory of J & K, it refers to the exercise of readjustmentas provided in sub-section (2) and (3) of Section 62 which is AB

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Anothing but delimitation exercise contemplated by sub-section(1) of Section 60 due to the reason of the increase in themembership of the Legislative Assembly from 83 to 90. Moreover,the readjustment was necessary to be made on the basis of thecensus figures of the 2011 census as contemplated by Section 4and sub-section (1) of Section 9 of the Delimitation Act, 2002 asBamended by clause (b) of sub-section (1) of Section 62 of theJ&K Reorganisation Act. [Para 32][542-H; 544-A-C]3.2. The Delimitation Act, 2002 contemplates theconstitution of only one Delimitation Commission and not morethan one. The Delimitation Act, 2002 was made applicable forCthe first time to the State of Jammu and Kashmir with effect from31[st] October 2019. Even the Delimitation Acts of 1962 and 1972were not applicable to the State of Jammu and Kashmir. By virtueof the J&K Reorganisation Act, not only provisions of theDelimitation Act, 2002 were made applicable to the UnionDTerritory of J & K, but a mandatory duty of readjustment of theconstituencies in the Union Territory both of the LegislativeAssembly and Parliament was entrusted to the DelimitationCommission by sub-Sections (2) and (3) of Section 62. Till 31[st]October 2019, the Delimitation Commission for the State/UnionTerritory of J & K under the Delimitation Act, 2002 could notEhave been established as the said enactment was not madeapplicable to the State of Jammu and Kashmir till then. [Para33][544-D-E]

3.3. Sub-section (6) of Section 10 of the Delimitation Act,2002 uses the word “endeavour”. Section 10A of the DelimitationFAct, 2002 itself indicates that the time limit of 31[st] July 2008 fixedunder sub-Section (6) of Section 10 is not sacrosanct as it confersa power on the Hon’ble President to defer the delimitationexercise in a State under certain circumstances. Thus, the timelimit provided in sub-section (6) of Section 10 was never intendedGto be mandatory. While amending Section 2(f) of the DelimitationAct by the J&K Reorganisation Act, sub-section (6) of Section10 has not been amended for enlarging the period providedthereunder. However, the intention of the legislature as reflectedin sub-sections (2) and (3) of Section 62 of the J&K

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Reorganisation Act is crystal clear. The very fact that the duty ofmaking the readjustment as per sub-sections (2) and (3) of Section62 on the basis of the 2011 census figures has been entrusted tothe Delimitation Commission suggests that the legislatureintended that the Delimitation Commission for the Union Territoryof Jammu & Kashmir will remain unaffected by the requirementof completing the exercise by the end of July 2008. The provisionsof sub-Sections (2) and (3) of Section 62 will have to be interpretedin a manner that gives effect to the intention of the legislature. Ifit is held that due to the failure of the legislature to modify thetime limit provided in sub-Section (6) of Section 10 of theDelimitation Act, 2002, the Central Government is powerless toappoint a Delimitation Commission for the newly created Unionterritory, the provisions of Section 62 of the J&K ReorganisationAct will be rendered nugatory. A statute cannot be interpreted ina manner that will render some of its provisions otiose. A statutemust be construed and interpreted in such a manner as to makeit workable. Therefore, the argument based on sub-Section (6)of Section 10 of the Delimitation Act 2002 will have to be rejected.[Para 34][544-H; 545-A-E]

3.4. Articles 2 and 3 of the Constitution enable theParliament to create new States and Union territories. Accordingly,the two new Union territories have been created. The J&KReorganisation Act which created the two new Union territoriesassigns the role of readjustment of constituencies to theDelimitation Commission under the Delimitation Act, 2002.Article 4 of the Constitution permits the Parliament toincorporate such provisions in the law made in accordance withArticle 3 for the formation of new States and Union territories,which may be necessary to give effect to the provisions of thelaw. Such a law may also contain provisions as to representationsin Parliament and in the Legislature of the State or States affectedby such law. Therefore, such law which is made under Article 3can always provide for readjustment of the Constituencies in thenewly constituted States or Union territories through theDelimitation Commission. Hence, there is no illegality associatedwith the establishment of the Delimitation Commission underthe impugned Order dated 6[th] March 2020. [Para 35][545-F-H;546-A]

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A3.5. Under the notification dated 6[th] March 2020, theappointment of the Chairperson of the Delimitation Commissionwho was a retired Judge of this Court was for a period of oneyear. By the notification dated 3[rd] March 2021, the said periodwas extended up to two years. By the third impugned notificationdated 21[st] February 2022, the said period of two years wasBextended to two years and two months. Once the DelimitationCommission was established, there is nothing wrong if the CentralGovernment extended the period of appointment of theChairperson till the task of delimitation/readjustment wascompleted. The Delimitation Act, 2002 is silent about the termCof the appointment of the Chairperson. [Para 36][546-B-C]Exclusion of the North-Eastern States from the purview ofthe notification dated 6th March 2020

4.1. Another challenge is to that part of the secondimpugned notification dated 31[st] March 2021 by which the StatesDof Arunachal Pradesh, Assam, Manipur and Nagaland wereexcluded from the purview of the Delimitation Commissionconstituted under the notification dated 6[th] March 2020. In thecounter affidavit filed by the Union of India, reliance has beenplaced on the letter dated 22[nd] February 2021 issued by the DeputyESecretary (NE-III), Ministry of Home Affairs, Government ofIndia. In paragraphs 5 and 6 of the counter affidavit, it is statedthat the Delimitation Commission set up on 12[th] July 2002 underthe Chairmanship of a retired Judge of this Court had completedthe delimitation exercise in respect of the entire country exceptfor four North-Eastern States of Assam, Arunachal Pradesh,FManipur and Nagaland. It is stated that delimitation of these fourStates was deferred due to security reasons. Section 10A of theDelimitation 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 2021Gthat there were number of petitions pending in this Court as wellas in the Manipur High Court concerning delimitation exercisein North-Eastern States and that in the Court cases, discrepanciesin census figures of 2001 in relation to these States were pointedout. In fact, it is stated that a number of notices have been issued H

regarding the said discrepancies. Therefore, the said letter wasissued with the approval of the competent authority in which itwas stated that it may not be conducive to grant an extension forthe process of delimitation in the four North-Eastern States. Theterm of the Chairman of the Delimitation Commission constitutedunder the first impugned notification dated 6[th] march 2020 was toexpire on 5[th] March 2021. In view of the aforesaid letter, whileextending the term of the Chairman by one more year by thesecond impugned notification dated 3[rd] March 2021, the said fourStates were excluded. Thus, in effect, the term of the DelimitationCommission constituted under the notification dated 6[th] March2020 was extended by a period of one year only in relation to theUnion territory of J & K. By the third impugned notification, theperiod was further extended by a period of two months. Section10A of the Delimitation Act, 2002 itself permits the postponementof the exercise of delimitation in certain contingencies. Moreover,the position and the status of the newly created Union Territoryof J&K under the Constitution is completely different from thefour North-Eastern States. In its applicability to the UnionTerritory of J & K, Sections 4 and 9 of the Delimitation Act, 2002stand amended by requiring readjustment to be carried out onthe basis of the census figures of 2011. In case of the North EasternStates, there is no such amendment. Therefore, two unequalcannot be treated as equals. Hence, the argument based on theviolation of Constitutional provisions including Article 14deserves to be rejected. [Para 37][546-D-H; 547-A-E]

4.2. There is a great deal of substance in the argument ofthe learned Solicitor General that the challenge to the notificationdated 6[th] March 2020 was belatedly made by filing the presentpetition on 28[th] March 2022 and for the said delay, there is novalid explanation. Moreover, the notification dated 6[th] March 2020was substantially acted upon by completing the exercise ofdelimitation as the draft Order was also published on 14[th] March2022. [Para 39][548-B]

4.3. In the writ petition, the first prayer is for challengingthe increase in number of seats from 107 to 114. The saidprovision is made by sub-Section (1) of Section 60. Without AB

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Achallenging the legality of any of the provisions of the J&KReorganisation Act, it is contended that the Act of increasing thenumber of seats is violative of Articles 81, 82, 170, 330 and 332of the Constitution of India. Article 81 deals with the compositionof the House of the People; Article 82 deals with the readjustmentand allocation of seats of the House of Parliament after the censusBand Article 170 deals with legislatures of the States. None of theseprovisions deal with the Legislature of any Union territory. Article330 deals with the reservation of seats for Scheduled Castes andScheduled Tribes in the House of the People. Article 332 dealswith the reservation of seats for Scheduled Castes and ScheduledCTribes in the Legislative Assemblies of the States. Both theseprovisions do not deal with reservation of seats for the House oflegislature of Union Territories. In any case, even assuming thatArticle 332 can be applied to the reservation of seats for ScheduledCastes and Scheduled Tribes in the Legislatures of Unionterritories, it is not shown how the act of increasing the totalDnumber of seats in the legislature will offend Article 332, so longas the reservation is maintained as per the formula provided underArticle 332. [Para 40][548-C-F]

4.4. Another argument sought to be made is that theprovision made for 114 seats in the legislature of the newlyEconstituted Union Territory of J & K is illegal. This submissioncalls for no consideration as there is no challenge to the validityof sub-section (1) of Section 60 of the J&K Reorganisation Act.[Para 41][548-G]

4.5. Another argument was canvassed that the DelimitationFOrder of 2008 published by the Election Commission cannot bedeviated from. The perusal of the said Order shows that itreproduces the delimitation of the Parliamentary and LegislativeAssembly Constituencies made by the Delimitation ofParliamentary and Assembly Constituencies Orders of 1976 andG1995 for the State of Jammu and Kashmir. Both the orders of1976 and 1995 have been expressly modified by the J&KReorganisation Act by virtue of Sections 11(4) and 14(5) asprovided in the second and third Schedules thereto. Hence, theargument deserves to be rejected. [Para 42][548-H; 549-A-B]

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4.6. The petitioners have overlooked the fact that clause(b) of sub-Section (1) of Section 62 of the J&K ReorganisationAct has further amended the Delimitation Act, 2002 by providingthat words and figures ‘census held in the year 2001’ appearingin the Delimitation Act shall be construed as ‘census held in theyear 2011’. To its application to the Union territory of J & K, theyear 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 assignedto the Legislative Assembly will have to be readjusted on thebasis of 2011 census and the delimitation will have to be carriedout on the basis of the figures of the census held in the year2011. The effect of Section 63 is that once the exercise ofreadjustment/delimitation is made on the basis of 2011 censusfigures, the same will be frozen till the relevant figures of thefirst census taken after 2026 are available. Therefore, the exerciseof delimitation/readjustment of the seats in the Union Territoryof J & K was required to be made by the DelimitationCommission on the basis of the figures of the 2011 census. Inview of Section 63, further readjustment can be carried out onlyafter the publication of figures from the census held after theyear 2026. [Para 43][549-C-E]

4.7. Reliance placed on the opinion of the Attorney Generalis misplaced as it deals only with the provisions of the A.P.Reorganisation Act, 2014. The petitioners cannot rely upon theanswer given by Hon’ble Minister in the Lok Sabha as it dealswith delimitation of Constituencies in Telangana in the contextof Article 170. In any event, the said opinion as well as the answergiven by the Hon’ble Minister have no bearing on theinterpretation of the J&K Reorganisation Act. [Para 44][549-F-G]

4.8. A vague attempt was made by the petitioners to submitthat the exercise which is undertaken for the newly created Unionterritory of J & K was not undertaken on the basis of the UttarPradesh Reorganisation Act, 2000 and Andhra PradeshReorganisation Act, 2014. In both the Acts, there is no provisionwhich is pari materia with clause (b) of sub-Section (1) of Section62 of the J&K Reorganisation Act which amended the provisions AB

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Aof the Delimitation Act 2002 in its applicability to the newly formedUnion Territories by substituting the year 2001 with 2011. [Para45][549-G-H; 550-A]

4.9. There is absolutely no merit in any of the contentionsraised by the petitioners. The findings rendered in the judgmentBare on the footing that the exercise of power made in the year2019 under clauses (1) and (3) of Article 370 of the Constitutionis valid. The issue of the validity of the exercise of the said powersis the subject matter of petitions pending before this Court.Therefore, this Court has not dealt with the issue of validity.Nothing stated in this judgment shall be construed as givingCimprimatur to the exercise of powers under clauses (1) and (3) ofArticle 370 of the Constitution. [Para 46][550-B-C]

Engineering Kamgar Union v. Electro Steel Casting,2004 (6) SCC 36; Mangal Singh & Anr. v. Union ofIndia, 1967 (2) SCR 109; Meghraj Kothari v.DDelimitation Commission & Ors., 1967 (1) SCR 400 –referred to.

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.237 of 2022.

F(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

Ravi Shankar Jandhyala, Sr. Adv., Sunny Kumar, Sriram P., Advs.for the Petitioners.

Tushar Mehta, SG, K.M. Nataraj, ASG, Shailesh Madiyal, KanuAgrawal, Ms. Neela Kedar Gokhale, Saurav Roy, Nakul Chengappa KGK, Ms. Akriti A Manubarwala, Parth Awasthi, Vaibhav Sabharwal,Sudhanshu Prakash, Ms. Vinayaka S Pandit, Rajan Parmar, AkshayKumar, Arvind Kumar Sharma, Gurmeet Singh Makker, Ms. TarunaArdhendumauli Prasad, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua,Advs. for the Respondents.

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The Judgment of the Court was delivered by ABHAY S. OKA, J.

1. The main challenge in this writ petition under Article 32 of theconstitution of India is to the legality and validity of the action ofconstituting a Delimitation Commission for the Union Territory of Jammuand Kashmir under provisions of the Delimitation Act, 2002 and theexercise 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 Indiaon 5[th] August 2019. The said order was issued in the exercise of powersconferred by clause (1) of Article 370 of the Constitution of India. Thesaid order directed that all the provisions of the Constitution, as amendedfrom time to time, shall apply in relation to the State of Jammu andKashmir, subject to modifications made to Article 367 as set out in thesaid order. By the said order, Clause (4) was added to Article 367 providingthat the expression “Constituent Assembly of the State referred to inclause (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] August2019, a declaration under Clause (3) of Article 370 of the Constitutionbearing C.O.No.273 was made by the Hon’ble President of India on therecommendation of the Parliament, by which it was declared that all theclauses 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 thereorganisation of the State of Jammu and Kashmir by dividing it into twoUnion Territories. A new Union Territory of Ladakh was createdcomprising territories of Kargil and Leh Districts in the erstwhile Stateof Jammu and Kashmir. The Union Territory of Jammu and Kashmir(for short, ‘the Union Territory of J & K) was formed comprising theexisting 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 theConstitution of India which was earlier applicable only to the UnionTerritory of Puducherry, became applicable to the Union Territory of J& K. Article 239A confers a power on the Parliament to enact a law forcreating a legislature for the Union Territory.

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520SUPREME COURT REPORTS

A4. The Delimitation Act, 2002 which was not applicable to theerstwhile State of Jammu and Kashmir, was made applicable by virtueof Section 62 of the J&K Reorganisation Act to the newly formed UnionTerritory of J&K. On 6[th] March 2020, the Central Governmentconstituted a Delimitation Commission under Section 3 of the DelimitationAct, 2002 for the purpose of delimitation of Assembly and ParliamentaryBConstituencies in the Union Territory of J & K as well as the States ofArunachal Pradesh, Assam, Manipur and Nagaland. The Commissionwas headed by a retired Judge of this Court. The Election Commissionerand the State Election Commissioner were made ex-officio members ofthe Delimitation Commission. The term of appointment of the ChairpersonCwas fixed as one year. By a notification dated 3[rd] March 2021, the earliernotification dated 6[th] March 2020 appointing the Delimitation Commissionwas amended by 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 totwo years. The notification dated 6[th] March 2020 was further amendedDby a notification dated 21[st] February 2022 by providing that the term ofthe Chairperson shall be for two years and two months.

5. Sub-Section (1) of Section 60 of the J&K Reorganisation Actprovides that the number of seats in the Legislative Assembly of UnionTerritory of J & K shall be increased from 107 to 114. Sub-Section (4)Eof Section 14 provides that 24 seats in the Legislative Assembly of theUnion territory of J & K shall remain vacant and shall not be taken intoaccount for reckoning the total membership of the Assembly.

PLEADINGS

F6. Very wide and sweeping prayers have been made in the presentwrit petition invoking Article 32 of the Constitution of India. The firstchallenge is to the provision regarding the increase in the number ofseats in the Legislative Assembly of Union territory of J & K. The secondchallenge is to the modification made of the notification dated 6[th] March2020 by deleting the States of Arunachal Pradesh, Assam, Manipur andGNagaland from the purview of the Delimitation Commission. The third challenge is to the constitutionof the Delimitation Commission itself under the notification dated 6[th]March 2020. The challenge is on the ground that after the Delimitationof Parliamentary and Assembly Constituencies Order, 2008 (for shortH

“the Delimitation Order of 2008”) was issued by the Election Commissionof India, the existing Delimitation Commission was wound up andtherefore, it was inappropriate and illegal to constitute a new DelimitationCommission. The petitioners contended that the Delimitation Commissionhas been appointed under the notification dated 6[th] March 2020 by usurpingthe jurisdiction of the Election Commission of India (for short, ‘the ElectionCommission) and therefore, the constitution of the DelimitationCommission was ultra vires the provisions of sub-Sections (2) and (5)of Section 60 of the J&K Reorganisation Act. There is also a challengeto the constitution of the Delimitation Commission on the ground ofinfringement of clause (3) of Article 170 as well as Articles 14, 19 and21 of the Constitution.

7. We may note here that on 13[th] May 2022, this Court recordeda submission of Shri Ravi Shankar Jandhyala, the learned senior counselappearing for the petitioners that the petitioners are not seeking to assailabrogation of Article 370 of the Constitution. In view of this statement,this Court observed that certain allegations made on that behalf in thepleadings are to be ignored. This Court also noted that the challengereally was to the exercise undertaken in respect of the delimitationpursuant to the notification dated 6[th] March 2020 as amended by furthernotifications dated 3[rd] March 2021 and 21[st] February 2022.

8. A counter affidavit has been filed by the Union of India pointingout that during the pendency of this writ petition, on 5[th] May 2022, anotification has been published by the Delimitation Commission in theexercise 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 thedelimitation of Assembly Constituencies of the Union territory of J & Kand Parliamentary Constituencies. It is also pointed out that by a furtherorder dated 20[th] May 2022, the Central Government exercised powersunder sub-Sections (2) and (3) of Section 62 of the J&K ReorganisationAct appointing 20[th] May 2022 as the date on which order dated 5[th] May2022 issued by the Delimitation Commission shall come into force. Thecounter affidavit also notes that earlier, a draft order was published bythe Delimitation Commission on 14[th] March 2022 containing proposalsfor delimitation of the Constituencies, and objections and suggestions toit were invited. Copies of the notifications/orders dated 5[th ]May 2022and 20[th] May 2022 have been placed on record by the ElectionCommission – Respondent no.5. There is a rejoinder filed by the AB

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Apetitioners dealing with the counter affidavits filed by the Union of Indiaand the Election Commission.

SUBMISSIONS OF THE PETITIONERS

9. Shri Ravi Shankar Jandhyala, the learned senior counselappearing for the petitioners has made detailed submissions. The summaryBof his submissions is as under:

(a) That the 2[nd] proviso to clause (3) of Article 170 of theConstitution lays down that until the figures for the firstcensus taken after the year 2026 have been published, itshall not be necessary to readjust the total number of seatsCin the Legislative Assembly readjusted on the basis of the1971 census and the division into territorial constituenciesas may be readjusted on the basis of 2001 census. Theexercise undertaken of delimitation/readjustment of theAssembly and Parliamentary Constituencies of UnionDTerritory of J & K by appointing the DelimitationCommission under the impugned notification dated 6[th] March2020 is completely in violation of 2[nd] proviso to clause (3)of Article 170. Similarly, the 3[rd] proviso to Article 82 imposesan embargo on the readjustment of allocation of seats inthe House of the People readjusted on the basis of the 1971Ecensus and the division of States into territorial constituenciesas may be readjusted on the basis of the 2001 census tillthe figures of the first census conducted after 2026 areavailable. A similar embargo has been imposed by Articles330 and 332 of the Constitution on reserving the seats forFScheduled Castes and Scheduled Tribes till figures of thefirst census conducted after 2026 are available; (b)Earlier, the embargo was applicable till figures of the firstcensus taken after the year 2000 were available. It wasmodified by the Constitution (84[th] Amendment Act, 2001)by substituting the year 2026 for the year 2000. TheGovernment cannot undermine the objects and reasons forthe said amendment; G

(c) Till the figures of the first census conducted after the year2026 become available, the number of members of theLegislative Assembly of the States remains the same.H

Therefore, the effort to divide the Union territory of J & Kinto territorial constituencies was illegal and uncalled for; A

(d) Though the petitioners may not have challenged the validityof Section 62 of the J&K Reorganisation Act, the same isviolative of clause (3) of Article 170 of the Constitution andtherefore, the provisions of Section 62 cannot beBimplemented. He submitted that the number ofConstituencies in Legislative Assemblies of the State canbe readjusted only in accordance with Article 170 and inparticular, the 2[nd] proviso to clause (3) thereof, and therefore,any attempt to make any readjustment of the constituenciesCof the Union Territory of J & K violates Article 170. Theconstitution of the Legislative Assembly of the UnionTerritory of J & K must remain the same till the figures ofthe first census conducted after the year 2026 are madeavailable; D

(e) In view of Articles 82 and 83, constituencies of the Houseof the People for the Union territory of J & K cannot bereconstituted without the publication of the results of thefirst census conducted after the year 2026; (f)The opinion rendered by the learned Attorney General forIndia on 6[th] July 2016 concerning the implementation ofSection 26 of the Andhra Pradesh Reorganisation Act, 2014(for short, ‘the 2014 Act’) is very relevant. The learnedAttorney General for India opined that there was a conflictbetween Section 26 of the 2014 Act and Article 170 of theConstitution and therefore, Article 170 will prevail. It wassubmitted that the said opinion will govern the relevantprovisions of the J&K Reorganisation Act as well; E

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(g) A non-obstante clause in a statute cannot override theprovisions of the Constitution. Reliance was placed upon adecision of this Court in the case of Engineering KamgarUnion v. Electro Steel Casting[1]on this behalf; G

(h) The delimitation order of 2008 published by the ElectionCommission cannot be deviated from. The guidelines issuedby the Election Commission are very relevant on this behalf; A(i)As under Section 62 of the J&K Reorganisation Act, thework of delimitation has been entrusted to the ElectionCommission, the notification dated 6[th] March 2020 whichpermits Delimitation Commission to undertake the saidexercise, is completely illegal; B(j)It is a settled law that this Court can take judicial notice ofthe proceedings of the Houses of Parliament. A questionwas asked in the Lok Sabha by a Hon’ble Member regardingundertaking the delimitation of the constituencies in the Stateof Telangana along with the Union territory of J & K. Theanswer given by Shri Nityanand Rai, the Hon’ble MinisterCof State in the Ministry of Home Affairs on 3[rd] August 2021to the question was that the total number of seats in theAssembly of each State will be readjusted after the firstcensus is published after the year 2026; (k)In any event, the appointment of the DelimitationDCommission under the order dated 6[th] March 2020 iscompletely contrary to Section 3 of the Delimitation Actwhich provides that the Delimitation Commission shall beconstituted at the earliest. Sub-Section (6) of Section 10 ofthe Delimitation Act, 2002 requires the DelimitationECommission to complete the exercise and to publish ordersunder sub-Section (1) of Section 10, not later than 31[st] July2008. Hence, the orders passed by the DelimitationCommission constituted under the notification dated 6[th]March 2020 are in complete violation of the mandate ofsub-Section (6) of Section 10;F

(l) The Delimitation Act, 2002 contemplates the constitutionof a single Delimitation Commission and not multipleCommissions. He would, therefore, submit that theconstitution of the Delimitation Commission is completelyillegal;G(m)The States of Arunachal Pradesh, Assam, Manipur andNagaland were illegally excluded from the purview of thenotification dated 6[th] March 2020. The said action was takenon the basis of the letter dated 22[nd] February 2021addressed by the Deputy Secretary of the Ministry of HomeHAffairs, stating that considering the litigations pending concerning the delimitation exercise in North-Eastern States,the delimitation exercise should not be undertaken in thesaid States. The earlier notification cannot be modified onthe basis of the views of a Deputy Secretary. The Union ofIndia and the Election Commission cannot apply differentyardsticks to different States. There was no reason toexclude the other States included in the notification dated6[th] March 2020; (n)Sections 59 to 63 of the J&K Reorganisation Act are notonly violative of the express provisions of the Constitutionbut also contradictory to each other. These Sections conferthe power of delimitation both on the Election Commissionand the Delimitation Commission which makes theseSections completely illegal. Sub-Section (1)(b) of Section11 of the Delimitation Act, 2002 permits the ElectionCommission to make any changes in the boundary, area, orthe extent of any constituency as described in the delimitationorder already issued and published; (o)The act of omission of the words “but does not include theState of Jammu and Kashmir” from Section 2(f) of theDelimitation Act, 2002 by sub-Section (1) of Section 62 ofthe J&K Reorganisation Act infringes Article 14 of theConstitution of India; (p)Consolidation of all the delimitation orders was already madeby the Election Commission in accordance with Section 9of the Representation of the People Act, 1950; (q)Articles 2 to 4 of the Constitution are subject to otherprovisions of the Constitution and the provisions of the saidArticles 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 (1) of Section 10 of the Delimitation Act, 2002, thepresent writ petition is maintainable. The decision of theConstitution Bench of this Court in the case of MeghrajKothari v. Delimitation Commission & Ors.[2]will haveno application to the facts of the present case.

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ASUBMISSIONS OF THE UNION OF INDIA

10. Shri Tushar Mehta, the learned Solicitor General of Indiaappearing for the Union of India has made the following submissions:

(a) Writ petition suffers from delay and latches as theDelimitation Commission was constituted by the impugnedBnotification dated 6[th] March 2020. The notification wasamended on 3[rd] March 2021 by deleting the States ofArunachal Pradesh, Assam, Manipur and Nagaland.Thereafter, on 14[th] March 2022, a draft delimitation orderwas published by the Commission. As late as on 28[th] MarchC2022, the present petition has been filed. For challengingthe notification dated 6th March 2020, the present writpetition has been filed after a lapse of more than two years; (b)During the pendency of this petition, the delimitation orderunder sub-Section (1) of Section 10 of the Delimitation Act,2002 has been issued by the Delimitation Commission whichDhas been brought into force with effect from 20[th] March2022;

(c) Under sub-Section (2) of Section 10 of the DelimitationAct, 2002, there is a complete bar on any Court questioningthe order passed under sub-Section (1) of Section 10. InEview of the decision of the Constitution Bench in the caseof Meghraj Kothari[2], the bar under sub-Section (2) ofSection 10 is applicable also to a remedy under Article 226of the Constitution. Article 329 also creates a bar oninterference by Courts in the matters of validity of any lawFrelating to the delimitation of constituencies. An order ofdelimitation of constituencies has been held to be a law andtherefore, now the orders dated 5[th] May 2020 and 20[th] May2022 cannot be questioned; (d)Sections 60 and 62 of the J&K Reorganisation Act operatein different fields. Section 60 generally refers to theGdelimitation of constituencies and Section 62 deals with thedelimitation of constituencies on the basis of census figuresof the 2011 census. He pointed out that sub-Section (1) ofSection 60 which confers power on the Election Commissionof delimitation uses the word “may” whereas Section 62Huses the word “shall”; (e)The Election Commission by a letter dated 2[nd] SeptemberA2019 informed the Government of India that since theDelimitation Commission is constituted under Section 62 ofthe J&K Reorganisation Act which is carrying outreadjustment of Parliamentary and Legislative Assemblyconstituencies, it was not necessary for the ElectionBCommission to undertake the exercise under Section 60 ofthe Delimitation Act; A

(f) Article 3 specifically empowers Parliament by law to forma new State/Union Territory and the said law referred to inArticle 3 must provide for the appropriate amendments tothe First Schedule and Fourth Schedule for giving effect tothe provisions of the law. Clause (2) of Article 4 specificallyprovides that no such law shall be deemed to be anamendment of the Constitution for the purpose of Article368. Reliance was placed upon a decision of the ConstitutionBench in the case of Mangal Singh & Anr. v. Union ofIndia[3]on this behalf; and C

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(g) Clauses (3) of Articles 81 and Article 170 do not apply tothe Union territories at all.

REJOINDER

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11. The learned senior counsel appearing for the petitioners byway of rejoinder urged that though there may not be any specific challengein the present petition to the validity of the provisions of the J&KReorganisation Act, the said challenge can always be inferred. Hesubmitted that the issues of inconsistency between the Constitutionalprovisions and the provisions of the J&K Reorganisation Act have notbeen answered by the learned Solicitor General of India.

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CONSIDERATION OF SUBMISSIONS

Developments concerning the State of Jammu and Kashmirin the year 2019

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12. (a)On 5[th] August 2019, the Constitution (Application toJammu & Kashmir) Order, 2019 (for short ‘the 2019Presidential Order’) was promulgated by the Hon’ble H

528SUPREME COURT REPORTS

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President of India in the exercise of powers under clause(1) of Article 370 of the Constitution of India. The saidorder was issued in concurrence with the Governmentof the State of Jammu and Kashmir. Clause (2) of the2019 Presidential Order provided that all the provisionsof the Constitution of India, as amended from time totime, shall apply in relation to the State of Jammu andKashmir subject to exceptions and modifications set outin the said order. Clause (4) was added by the saidOrder to Article 367 in relation to the State of Jammuand 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 theConstitution shall be read as “Legislative Assembly ofthe State”. The 2019 Presidential order was broughtinto force with immediate effect; (b)The second important development was the declarationunder Clause (3) of Article 370 of the Constitution (forshort ‘the said declaration’) made by the Hon’blePresident on the recommendation of the Parliament. Itwas declared that from 6[th] August 2019, all clauses ofArticle 370 shall cease to be operative, subject to theexceptions incorporated in the said declaration. It wasprovided therein that notwithstanding anything containedto the contrary in Articles 152 and 308 as well as anyother Article of the Constitution or any other provisionof the Constitution of Jammu and Kashmir or any law,all the provisions of the Constitution of India as amendedfrom time to time shall apply to the State of Jammu andKashmir;

(c) Thus, in view of the 2019 Presidential Order and thesaid declaration, with effect from 6[th] August 2019, allthe provisions of the Constitution of India becameapplicable to the State of Jammu and Kashmir exceptthe modifications provided in the 2019 Presidential Order.As a result of the said declaration and the 2019Presidential Order, the special status of the State ofJammu and Kashmir under the Constitution by virtueof Article 370 virtually came to an end; (d)Another important development that followed was theenactment of the J&K Reorganisation Act whichreceived the assent of the Hon’ble President on 9[th]August 2019. 31[st] October 2019 was fixed as theappointed day under the J&K Reorganisation Act bythe Central Government. By virtue of Sections 3 and 4thereof, with effect from 31[st] October 2019, a new UnionTerritory came into existence known as the UnionTerritory of Ladakh. The said Union Territory comprisesof the areas covered by Kargil and Leh districts. Fromthe appointed day, the Union Territory of J & K wasalso created. The said Union Territory comprises ofthe territories of the erstwhile State of Jammu andKashmir except the area covered by the Union Territoryof Ladakh. Thus, with effect from 31[st] October 2019,the State of Jammu and Kashmir ceased to exist andthe Union Territories of Ladakh, as well as Jammu &Kashmir, were brought into existence;

(e) The Delimitation Act, 2002 became applicable to theUnion territory of J & K as the definition of “State” inclause (f) of Section 2 thereof includes the UnionTerritories having a Legislative Assembly. In addition,many other Central enactments incorporated in Table-1 of the Fifth Schedule to the J&K Reorganisation Actbecame 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 electionsto fill in the seats in either House of Parliament in theState of Jammu and Kashmir and the House ofLegislature of the said State. An amendment was carriedout to the RP Act of 1951 by the J&K ReorganisationAct by which the provisions of the RP Act of 1951were made applicable to both the newly created UnionTerritories. Prior to that, The Jammu and KashmirRepresentation of the People Act, 1957 (for short “J&KR.P Act”) was applicable to the State. We may notehere that as the Representation of the People Act, 1950(for short ‘the RP Act of 1950’), was applicable to the A

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State of Jammu and Kashmir, the same continues toapply to the two newly created Union Territories; A

(g) By virtue of Section 13 of the J&K Reorganisation Act,the provisions contained in Article 239A which wereearlier applicable only to the Union Territory ofPuducherry were made applicable to the Union Territoryof J and K. Article 239A, inter alia, provides thatParliament may by law create a body to function as alegislature of the Union Territory of Puducherry.

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The issue of the validity of provisions of the J&KCReorganisation Act.

13. We may note here that during the course of the hearing ofsubmissions of the learned senior counsel appearing for the petitioners,he attempted to assail the validity of certain provisions of the J&KReorganisation Act. Therefore, we pointed out to him that there is noDchallenge incorporated in the present writ petition to the constitutionalvalidity of any of the provisions of the J&K Reorganisation Act. Theinitial response of the senior counsel was that he does not wish tochallenge the provisions. However, subsequently, he submitted that thechallenge to the relevant provisions of the J&K Reorganisation Act isimplicit in this writ petition.

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14. There cannot be any doubt that when a party wants tochallenge the constitutional validity of a statute, he must plead in detailthe 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 intothe issue of the validity of statutory provisions. The Constitutional CourtsFcannot interfere with the law made by the Legislature unless it isspecifically challenged by incorporating specific grounds of challenge inthe pleadings. The reason is that there is always a presumption of theconstitutionality of laws. The burden is always on the person allegingunconstitutionality to prove it. For that purpose, the challenge has to bespecifically pleaded by setting out the specific grounds on which theGchallenge is made. A Constitutional Court cannot casually interfere withlegislation made by a competent Legislature only by drawing an inferencefrom the pleadings that the challenge to the validity is implicit. The Stategets a proper opportunity to defend the legislation only if the State ismade aware of the grounds on which the legislation is sought to beHchallenged.

15. Though an opportunity was available to the petitioners tochallenge the provisions of the J&K Reorganisation Act, the petitionershave chosen not to do so. We may also note here that the petitioners arealso not questioning the 2019 Presidential Order and the said declaration.Therefore, we will have to proceed on the footing that the 2019 PresidentialOrder, the said declaration and the provisions of the J&K ReorganisationAct are valid. It is in this context that the submissions made across theBar will have to be appreciated.

Findings on the challenges in the Writ Petition

Findings on the challenges in the Writ Petition

16. The Constitution makes a clear distinction between the Statesand 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 Vdeals with Parliament. Part VI deals with the States. Chapter III of PartVI deals with the State Legislature. Part VIII of the Constitutionindependently deals with the Union Territories.

17. Article 3 provides that Parliament may by law form new Statesand alter the areas, boundaries or names of the existing States. Theexplanation I provides that in clauses (a) to (e) of Article 3, a “State”includes “Union Territory”. Thus, Explanation I makes it amply clearthat the power of Parliament under Clause (a) of Article 3, to make alaw to form a new State or to alter a boundary of a State includes apower to make a law to form a new Union Territory. Explanation IIclarifies that the power conferred by clause (a) on Parliament to enactthe law to form a new State includes a power to form a Union Territoryby uniting parts of any State or Union Territory to any other State orUnion Territory. Clause (1) of Article 4 provides that any law made byParliament as provided in Article 3 shall contain such provisions for theamendment of the First Schedule (containing the list of States and UnionTerritories) and Fourth Schedule (containing allocation of seats in theCouncil of States) as may be necessary for the purposes of giving effectto the provisions of the law. Such a law may also contain suchsupplemental, incidental and consequential provisions including provisionsas to representation in Parliament and in the Legislature or Legislaturesof the State or States affected by such law as Parliament may deemnecessary. Clause (2) of Article 4 clarifies that no such law made byArticle 3 shall be deemed to be an amendment of the Constitution forthe purposes of Article 368. By the same law, a provision can be madeas to the representation in Parliament and in the legislature of the Union AB

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ATerritory created by such law. The Constitution Bench in the case ofMangal Singh[3 ]has held that the power under Article 4 is wide enougheven to reduce the total members of the Legislative Assembly below theminimum prescribed by clause (1) of Article 170.

18. Firstly, we will deal with the issue of applicability of ArticleB170 having the title “Composition of the Legislative Assemblies” to theUnion Territory of J & K. Article 170 forms part of Chapter III underthe title “The State Legislature”. Chapter III has been incorporated inPart VI of the Constitution which deals with the States. Much emphasiswas laid on the violation of the provisions contained in the second Provisoto Clause (3) of Article 170 by the learned counsel appearing for theCpetitioners. But we may note here that the said Article does not dealwith the legislatures of Union Territory at all. Articles 239A and 239AAwhich are included in Part VIII of the Constitution are the Articles thatdeal with the creation of a body to function as legislature and Council ofMinisters for certain Union Territories. For the sake of convenience, weDare reproducing Article 239A which reads thus:

“239A. Creation of local Legislatures or Council ofMinisters or both for certain Union territories— (1)Parliament may by law create [for the Union territory of[Puducherry] —

E(a) a body, whether elected or partly nominated and partlyelected, to function as a Legislature for the Unionterritory, or (b) a Council of Ministers, or both with such constitution, powersand functions, in each case, as may be specified in the law.

F(2) Any such law as is referred to in clause (1) shall not be deemedto be an amendment of this Constitution for the purposes of article368 notwithstanding that it contains any provision which amendsor has the effect of amending this Constitution.”

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Article 239A as it originally stood provided that Parliament mayby law create for the Union Territory of Puducherry a body to functionas a Legislature for the Union Territory or a Council of Ministers orboth. Such a body to act as a Legislature of the Union Territory coveredby Article 239A may be elected or partly nominated and partly elected.H

By virtue of Section 13 of the J&K Reorganisation Act, with effectfrom 31[st] October 2019, Article 239A became applicable to the UnionTerritory of J and K. As noted by clause (2) of Article 239A, the lawcontemplated by clause (1) of Article 239A shall not be deemed to be anamendment to the Constitution for the purposes of Article 368notwithstanding that it contains any provision which amends or has theeffect of amending the Constitution.

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19. On a conjoint reading of Articles 3,4 and 239A, we find that:- a)Parliament by making a law can convert an existing Stateinto one or more Union territories; C

b)Parliament is empowered by law to create a body oflegislature for the Union territories of Puducherry and J&K.Accordingly, sub-Section (2) of Section 14 of the J & KReorganisation Act provides that there shall be a LegislativeAssembly for the Union Territory of J & K.; and

c)Even if the law made by Parliament creating a body ofDlegislature for Union territories of Puducherry and J&Khas the effect of amending certain parts of the Constitution,it shall not be deemed to be an amendment of theConstitution for the purposes of Article 368.

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20. Now coming to the J&K Reorganisation Act, it is apparentthat the said law has been made by Parliament in the exercise of powersunder Articles 3,4 and 239A. The said law created two Union territoriesin place of the State of Jammu and Kashmir. The said law provides forthe amendment of the First and Fourth schedule for giving effect to itsprovisions. Section 13 provides for amendment of Article 239A forapplying the same to the Union territory of J & K. Section 13 is asupplemental and consequential provision made by Parliament as providedin clause (1) of Article 4 for the purposes of giving effect to the creationof 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 beaffected by Article 368 of the Constitution.

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21. Under sub-section (2) of Section 14 of the J&K ReorganisationAct, a Legislative Assembly for the Union territory of J and K has beencreated. Sub-section (3) provides that the total number of seats in theLegislative Assembly of the Union territory of J & K to be filled by thepersons chosen by direct election shall be 107. Clause (a) of sub-section H

A(4) of Section 14 provides that 24 seats in the Legislative Assembly ofthe said Union territory shall remain vacant until the area of the UnionTerritory 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 earmarkedfor Pakistan occupied territory were 87 out of which 7 seats wereBreserved for Scheduled Castes and Schedule Tribes.

22. As far as the number of constituencies is concerned, we mustalso refer to Part V of the J&K Reorganisation Act having the title“Delimitation of Constituencies”. Sub-section (1) of Section 60 providesthat the number of seats in the Legislative Assembly of the Union territoryCof J & K shall be increased from 107 to 114. However, the excluded 24seats covered by Pakistan occupied territory remain the same. Thus,the total number of seats available now for holding elections to theLegislative Assembly of the Union territory of J & K is 90.

23. Hence, as far as the Legislative Assembly of the Union territoryDof J & K is concerned, Article 170 will have no application as it forms apart of Chapter III of Part VI which deals with only the State Legislature.It has no application to the Legislatures of Union Territories. The reasonis that the Legislative Assemblies of the concerned Union Territorieswill be governed by the law made by the Parliament in accordance withEArticle 239A and not by the provisions of Chapter III of Part VI. AsArticle 170 is not applicable to the Legislature of the Union Territory ofJ & K, the main thrust of the argument that certain provisions of theJ&K Reorganisation Act and actions taken thereunder are in conflictwith Article 170 and in particular Clause (3) thereof is clearlymisconceived and deserves to be rejected.F

The exercise of Delimitation

24. Now, we come to the issue of delimitation of constituencies ofthe Legislative Assembly of the Union territory of J and K. There weretwo earlier enactments dealing with the establishment of the DelimitationGCommission. The first one was the Delimitation Commission Act, 1962and the second one was the Delimitation Act, 1972. Both the Acts werenot applicable to the State of Jammu and Kashmir as the definition ofthe State incorporated in both Acts specifically excluded the State ofJammu 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 downH

the requirement of the establishment of the Delimitation Commissionwhich provided that the Delimitation Commission shall distribute the seatsin the Legislative Assembly to single member territorial constituenciesand 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 forthe Delimitation Commission to pass an order regarding the delimitationof constituencies and publish the same. In fact, the Delimitation ofAssembly Constituencies Order, 1995 was issued which was applicableto the State of Jammu and Kashmir. Section 4-C of the J&K RP Actconferred power on the Election Commission to correct any printingmistakes in the final order of the Delimitation Commission or any erroror omission. The Election Commission was also empowered to makeamendments when the boundaries or names of any district or anyterritorial division mentioned in the final order of the DelimitationCommission were altered.

25. By virtue of sub-section (5) of Section 14 of the J&KReorganisation Act, the said Delimitation Order of 1995 was amendedas provided in the Third Schedule thereof. The Third Schedule containsthe details of the amendments to the delimitation of the assemblyconstituencies made by the said Delimitation Order of 1995 in relation tothe existing 83 assembly constituencies out of a total 107 as provided insub-section (3) of Section 14. 24 constituencies covered by the Pakistanoccupied area were obviously not covered by the Delimitation Order.Thus, by virtue of sub-section (5) of Section 14, the delimitation of 83constituencies of the Legislative Assembly of the Union Territory of J &K was incorporated in the form of the Third Schedule which sets out theboundaries of and the areas incorporated in the new individual 83constituencies.

26. Now we come to Part V of the of J&K Reorganisation Actwhich deals with the Delimitation of Constituencies. By virtue of clause(a) of sub-section (1) of Section 62, the provisions of the DelimitationAct, 2002 were made applicable to the Union Territory of J & K witheffect from 31[st] October 2019. For the sake of convenience, we arereproducing Sections 60 to 63 of the J&K Reorganisation Act whichread thus:

60. (1) Without prejudice to sub-sections (3) of section 14of this Act, the number of seats in the Legislative Assemblyof Union territory of Jammu & Kashmir shall be increased A

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Afrom 107 to 114, and delimitation of the constituencies maybe determined by the Election Commission in the mannerhereinafter provided—

(a) the number of seats to be reserved for the ScheduledCastes and the Scheduled Tribes in the LegislativeBAssembly, having regard to the relevant provisions of theConstitution; (b) the assembly constituencies into which the Unionterritory shall be divided, the extent of each of suchconstituencies and in which of them seats shall be reservedCfor the Scheduled Castes or for the Scheduled Tribes; and

(c) the adjustments in the boundaries and description ofthe extent of the parliamentary constituencies in each Unionterritory that may be necessary or expedient.

(2) In determining the matters referred to in clauses (b) and (c) ofDsub-section (1), the Election Commission shall have regard to thefollowing provisions, namely:—

(a) all the constituencies shall be single-member constituencies; (b) all constituencies shall, as far as practicable, be geographicallycompact areas, and in delimiting them, regard shall be had toEphysical features, existing boundaries of administrative units,facilities of communication and conveniences to the public; and

(c) constituencies in which seats are reserved for the ScheduledCastes and the Scheduled Tribes shall, as far as practicable, belocated in areas where the proportion of their population to theFtotal population is the largest.

(3) The Election Commission shall, for the purpose of assisting itin the performance of its functions under sub-section (1), associatewith itself as associate members, four persons as the CentralGovernment may by order specify, being persons who are theGmembers of the Legislative Assembly of the Union territory ofJammu & Kashmir or four members of the House of the Peoplerepresenting the Union territory of Jammu and Kashmir:

Provided that none of the associate members shall have a right tovote or to sign any decision of the Election Commission.

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(4) If, owing to death or resignation, the office of an associatemember falls vacant, it shall be filled as far as practicable, inaccordance with the provisions of sub-section (3).

(5) The Election Commission shall—

(a) publish its proposals for the delimitation of constituenciestogether with the dissenting proposals, if any, of any associatemember who desires publication thereof in the Official Gazetteand in such other manner as the Commission may consider fit,together with a notice inviting objections and suggestions in relationto the proposals and specifying a date on or after which theproposals will be further considered by it;

(b) consider all objections and suggestions which may have beenreceived by it before the date so specified; and

(c) after considering all objections and suggestions which mayhave been received by it before the date so specified, determineby one or more orders the delimitation of constituencies and causesuch order or orders to be published in the Official Gazette, andthere upon such publication, the order or orders shall have the fullforce of law and shall not be called in question in any court.

(6) As soon as may be after such publication, every such orderrelating to assembly constituencies shall be laid before theLegislative Assembly of the Union territory of Jammu and Kashmir.

61. (1) The Election Commission may by notification in the OfficialGazette,—

(a) correct any printing mistakes in any order made under section60 or any error arising therein from inadvertent slip or omission;and (b) where the boundaries or name of any territorial divisionmentioned in any such order or orders is or are altered, makesuch amendments as appear to it to be necessary or expedient forbringing such order up-to-date.

(2) Every notification under this section relating to an assemblyconstituency shall be laid, as soon as may be after it is issued,before the Legislative Assembly.

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SUPREME COURT REPORTS

62. (1) On and from the appointed day, notwithstanding thepublication of orders under sub-section (1) of section 10 of theDelimitation Act, 2002 or anything contained in sub-section (2) orsub-section (4) of the said section, the Delimitation Act, 2002shall be deemed to have been amended as provided below:

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B(a) in section 2(f), the words “but does not include the Stateof Jammu and Kashmir” shall be omitted; and (b) for the purpose of delimitation of Assembly andParliamentary Constituencies, the words and figure “censusheld in the year 2001”, wherever occurring, shall beconstrued as words and figure “census held in the year2011”.

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(2) Readjustment of the constituencies as provided undersection 60 in the successor Union territory of Jammu &Kashmir into Assembly Constituencies, shall be carried byDthe Delimitation Commission, to be constituted under theDelimitation Act, 2002 as amended by this Act, and shalltake effect from such date as the Central Government may,by order, published in the Official Gazette, specify.

(3) Readjustment of the constituencies as provided undersection 11 in the successor Union territory of Jammu &Kashmir into Parliamentary Constituencies, shall be carriedby the Delimitation Commission, to be constituted underthe Delimitation Act, 2002 as amended by this Act, and shalltake effect from such date as the Central Government may,by order, published in the Official Gazette, specify.

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63. Special provisions as to readjustment of Assembly andParliamentary Constituencies.— Notwithstanding anythingcontained in sections 59 to 61, until the relevant figures for thefirst census taken after the year 2026 have been published, it shallnot be necessary to readjust the division of successor UnionGterritory of Jammu and Kashmir into Assembly and ParliamentaryConstituencies and any reference to the “latest census figures” inthis Part shall be construed as a reference to the 2011 censusfigures.”

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27. As noted earlier, the delimitation of 83 constituencies of theUnion Territory was made under the J&K Reorganisation Act and wasincorporated in the Third Schedule as provided in sub-section (5) ofSection 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 Territorywas required to be increased from 107 to 114. Thus, by excluding 24seats from Pakistan occupied areas, the mandate was to increase theseats from 83 to 90. For giving effect to the increase in the number ofseats as aforesaid, the exercise of delimitation for dividing the UnionTerritory into 90 constituencies and determining the number of seats tobe reserved for Scheduled Castes and Schedule Tribes was required tobe undertaken. Sub-section (1) of Section 60 provides that the saiddelimitation exercise may be undertaken by the Election Commission.However, sub-section (2) of Section 62 provides that the readjustmentof the constituencies as provided under Section 60 in the successor UnionTerritory of J & K into assembly constituencies shall be carried out bythe Delimitation Commission to be constituted under the DelimitationAct, 2002 as amended by the J&K Reorganisation Act. Sub-section (1)of Section 60, as noted earlier, provides that the exercise of the divisionof the newly constituted Union Territory into 90 assembly constituenciesand providing for reservation may be undertaken by the ElectionCommission. However, the purport of Section 62 is that if a DelimitationCommission is constituted under the Delimitation Act 2002, the exerciseprovided by clauses (a) to (c) of sub-section (1) of Section 60 shall becarried out by the Delimitation Commission. However, sub-section (2)of Section 62 refers to the readjustment of the constituencies. But, thepurport of sub-section (2) of Section 62 is that the readjustment meansthe creation of 90 constituencies in the newly set up Union territory.Thus, the process of readjustment contemplated by sub-section (2) ofSection 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 indicateswhat 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 censusheld in the year 1971 by the Delimitation Commission constitutedunder section 3 of the Delimitation Act, 1972 (76 of 1972), of theallocation of seats in the House of the People to the several States ABC

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Aand the total number of seats in the Legislative Assembly of eachState shall be deemed to be the readjustment made by theCommission for the purposes of this Act.

(2) Subject to the provisions of sub-section (1) and any otherlaw for the time being in force, the Commission shallBreadjust the division of each State into territorialconstituencies for the purpose of elections to the House ofthe People and to the State Legislative Assembly on thebasis of the census figures as ascertained at the censusheld in the year [2001]:

CProvided that where on such readjustment only one seat isallocated in the House of the People to a State, the whole of thatState shall form one territorial constituency for the purpose ofelections to the House of the People from that State.”

DWhat 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 2001stands substituted by the year 2011 in relation to the Legislative Assemblyof the Union Territory of J & K.

29. Under Section 9 of the Delimitation Act, 2002, a specific powerEhas been conferred on the Delimitation Commission of conducting theDelimitation exercise. Section 9 reads thus:

“9. Delimitation of constituencies.— (1) The Commissionshall, in the manner herein provided, then, distribute theseats in the House of the People allocated to each StateFand the seats assigned to the Legislative Assembly of eachState as readjusted on the basis of 1971 census to single-member territorial constituencies and delimit them on thebasis of the census figures as ascertained, at the censusheld in the year [2001], having regard to the provisions of theConstitution, the provisions of the Act specified in section 8 andGthe following provisions, namely:—

(a) all constituencies shall, as far as practicable, be geographicallycompact areas, and in delimiting them regard shall be had tophysical features, existing boundaries of administrative units,facilities of communication and public convenience; H

(b) every assembly constituency shall be so delimited as to fallwholly within one parliamentary constituency;

(c) constituencies in which seats are reserved for the ScheduledCastes shall be distributed in different parts of the State and located,as far as practicable, in those areas where the proportion of theirpopulation to the total is comparatively large; and (d) constituencies in which seats are reserved for the ScheduledTribes shall, as far as practicable, be located in areas where theproportion 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 associatemember who desires publication thereof, in the Gazette of Indiaand in the Official Gazettes of all the States concerned and also insuch other manner as it thinks fit; (b) specify a date on or after which the proposals shall be furtherconsidered by it;

(c) consider all objections and suggestions which may have beenreceived by it before the date so specified, and for the purpose ofsuch consideration, hold one or more public sittings at such placeor 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.”

As noted earlier, by virtue of clause (b) of sub-section (1) ofSection 62 of the J&K Reorganisation Act, the year 2001 appearing insub-section (1) of Section 9 of the Delimitation Act, 2002 will have to beread as 2011. Therefore, the Delimitation Commission established underthe Order dated 6[th] March 2020 had to undertake the exercise ofdelimitation or readjustment on the basis of the census figures of 2011 asthe earlier exercise of delimitation of the constituencies of the erstwhileState was not made on the basis of the census figures of 2011. For thereasons stated above, there is nothing illegal about the exercise of A

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Adelimitation/readjustment of the constituencies undertaken by theDelimitation Commission for the purposes of dividing the Union Territoryinto 90 constituencies on the basis of the 2011 census figures.

30. Before we deal with the issue of the legality of the appointmentof the Delimitation Commission, we must deal with parliamentaryBconstituencies 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 wereallocated to the erstwhile State of Jammu and Kashmir with no reservationfor Scheduled Castes and Schedule Tribes. Section 10 of the J&KReorganisation Act provides that out of the 6 seats allocated to theerstwhile State, 5 will be allocated to the Union Territory of J & K andCone will be to the Union Territory of Ladakh. That is how Section 11provides thereof that the Delimitation of Parliamentary ConstituenciesOrder, 1976 stands amended as provided in the Second Schedule of thesaid Act. Thus, the delimitation of the five parliamentary constituenciesof the Union Territory of J & K and one constituency of the UnionDTerritory of Ladakh was made by virtue of Section 11 as provided in theSecond Schedule.

31. We have already quoted Section 60 of the J&K ReorganisationAct. Clause (c) of sub-section (1) thereof provides that considering theincrease in the number of seats of the Legislative Assembly, theEadjustments in the boundaries and description of the extent of theParliamentary Constituencies in each Union Territory may be made bythe Election Commission. Sub-section (3) of Section 62 provides thatreadjustment of the constituencies as provided in Section 11 in thesuccessor Union Territories into Parliamentary Constituencies shall becarried out by the Delimitation Commission. The readjustment referredFto in sub-section (3) of Section 62 is the adjustment of boundaries anddescription of the extent of the Parliamentary Constituencies as providedin sub-section (1) of Section 60. This became necessary as a result ofthe requirement of readjustment/delimitation of 90 constituencies of theLegislative Assembly. Therefore, there is no illegality associated withGthe delimitation/readjustment of Parliamentary constituencies of the UnionTerritory of J & K undertaken by the Delimitation Commission.

The legality of the appointment of the DelimitationCommission by the Notification of 6th March 2020

32. The impugned notification dated 6[th] March 2020 constitutingHthe Delimitation Commission reads thus:

HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA &ORS. [ABHAY S. OKA, J.]

“MINISTRY OF LAW AND JUSTICE

Legislative DepartmentNOTIFICATION

New Delhi, the 6[th] March, 2020

S.O. 1015 (E). – In exercise of the powers conferred by Section3 of the Delimitation Act, 2002 (33 of 2002), the CentralGovernment hereby constitutes the Delimitation Commission forthe purpose of delimitation of Assembly and Parliamentaryconstituencies in the Union territory of Jammu & Kashmir andthe 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 ofUnion Territory appointed under clause (1) of article 243K orunder clause (1) of article 243L of the Constitution, as the casemay be.

2. The appointment of Justice (Retd.) Ranjana Prakash Desaishall be for a period of one year from the date of the publicationof this notification in the Official Gazette or till further orders,whichever is earlier.

3. The said Delimitation Commission shall delimit theconstituencies, -

(i) of the Union territory of Jammu & Kashmir inaccordance with the provisions of Part V of the Jammu& Kashmir Reorganisation Act, 2019 (34 of 2019) andthe provisions of the Delimitation Act, 2002 (33 of 2002).

(ii) of the States of Assam, Arunachal Pradesh, Manipur andNagaland in accordance with the provisions of the Delimitationact, 2002 (33 of 2002).”

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AHence, it is obvious that when the said notification requires theDelimitation Commission to undertake the exercise of the delimitation ofAssembly 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 exercisecontemplated by sub-section (1) of Section 60 due to the reason of theBincrease in the membership of the Legislative Assembly from 83 to 90.Moreover, the readjustment was necessary to be made on the basis ofthe census figures of the 2011 census as contemplated by Section 4 andsub-section (1) of Section 9 of the Delimitation Act, 2002 as amendedby clause (b) of sub-section (1) of Section 62 of the J&K ReorganisationCAct.

33. One of the contentions raised by the petitioners is that theDelimitation Act, 2002 contemplates the constitution of only oneDelimitation Commission and not more than one. As noted earlier, theDelimitation Act, 2002 was made applicable for the first time to theDState of Jammu and Kashmir with effect from 31[st] October 2019. Eventhe Delimitation Acts of 1962 and 1972 were not applicable to the Stateof Jammu and Kashmir. By virtue of the J&K Reorganisation Act, notonly provisions of the Delimitation Act, 2002 were made applicable tothe Union Territory of J & K, but a mandatory duty of readjustment ofthe constituencies in the Union Territory both of the Legislative AssemblyEand Parliament was entrusted to the Delimitation Commission by sub-Sections (2) and (3) of Section 62. Till 31[st] October 2019, the DelimitationCommission for the State/Union Territory of J & K under the DelimitationAct, 2002 could not have been established as the said enactment wasnot made applicable to the State of Jammu and Kashmir till then.F34. Sub-section (6) of Section 10 of the Delimitation Act, 2002reads thus:

“10. Publication of orders and their date of operation.—

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G(6) The Commission shall endeavour to complete and publish eachof its orders referred to in sub-section (1) in the manner providedin that sub-section, 2 [within a period not later than 31st day ofJuly, 2008] under section 3.”

Sub-section (6) uses the word “endeavour”. Section 10A of theHDelimitation 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 confersa power on the Hon’ble President to defer the delimitation exercise in aState under certain circumstances. Thus, the time limit provided in sub-section (6) of Section 10 was never intended to be mandatory. Whileamending Section 2(f) of the Delimitation Act by the J&K ReorganisationAct, sub-section (6) of Section 10 has not been amended for enlargingthe period provided thereunder. However, the intention of the legislatureas reflected in sub-sections (2) and (3) of Section 62 of the J&KReorganisation Act is crystal clear. The very fact that the duty of makingthe readjustment as per sub-sections (2) and (3) of Section 62 on thebasis of the 2011 census figures has been entrusted to the DelimitationCommission suggests that the legislature intended that the DelimitationCommission for the Union Territory of Jammu & Kashmir will remainunaffected by the requirement of completing the exercise by the end ofJuly 2008. The provisions of sub-Sections (2) and (3) of Section 62 willhave to be interpreted in a manner that gives effect to the intention ofthe legislature. If it is held that due to the failure of the legislature tomodify the time limit provided in sub-Section (6) of Section 10 of theDelimitation Act, 2002, the Central Government is powerless to appointa Delimitation Commission for the newly created Union territory, theprovisions of Section 62 of the J&K Reorganisation Act will be renderednugatory. A statute cannot be interpreted in a manner that will rendersome of its provisions otiose. A statute must be construed and interpretedin such a manner as to make it workable. Therefore, the argument basedon sub-Section (6) of Section 10 of the Delimitation Act 2002 will haveto be rejected.

35. Articles 2 and 3 of the Constitution enable the Parliament tocreate new States and Union territories. Accordingly, the two new Unionterritories have been created. The J&K Reorganisation Act which createdthe two new Union territories assigns the role of readjustment ofconstituencies to the Delimitation Commission under the DelimitationAct, 2002. Article 4 of the Constitution permits the Parliament toincorporate such provisions in the law made in accordance with Article3 for the formation of new States and Union territories, which may benecessary to give effect to the provisions of the law. Such a law mayalso contain provisions as to representations in Parliament and in theLegislature of the State or States affected by such law. Therefore, suchlaw which is made under Article 3 can always provide for readjustmentof the Constituencies in the newly constituted States or Union territories AB

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Athrough the Delimitation Commission. Hence, we hold that there is noillegality associated with the establishment of the Delimitation Commissionunder the impugned Order dated 6[th] March 2020.

36. Under the notification dated 6[th] March 2020, the appointmentof the Chairperson of the Delimitation Commission who was a retiredBJudge of this Court was for a period of one year. By the notificationdated 3[rd] March 2021, the said period was extended up to two years. Bythe third impugned notification dated 21[st] February 2022, the said periodof two years was extended to two years and two months. Once theDelimitation Commission was established, there is nothing wrong if theCentral Government extended the period of appointment of theCChairperson till the task of delimitation/readjustment was completed.The Delimitation Act, 2002 is silent about the term of the appointment ofthe Chairperson.

Exclusion of the North-Eastern States from the purview ofthe notification dated 6th March 2020

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37. Another challenge which is seriously pressed is to that part ofthe second impugned notification dated 31[st] March 2021 by which theStates of Arunachal Pradesh, Assam, Manipur and Nagaland wereexcluded from the purview of the Delimitation Commission constitutedunder the notification dated 6[th] March 2020. In the counter affidavitEfiled by the Union of India, reliance has been placed on the letter dated22[nd] February 2021 issued by the Deputy Secretary (NE-III), Ministryof Home Affairs, Government of India. In paragraphs 5 and 6 of thecounter affidavit, it is stated that the Delimitation Commission set up on12[th] July 2002 under the Chairmanship of a retired Judge of this CourtFhad completed the delimitation exercise in respect of the entire countryexcept for four North-Eastern States of Assam, Arunachal Pradesh,Manipur and Nagaland. It is stated that delimitation of these four Stateswas deferred due to security reasons. Section 10A of the DelimitationAct, 2002 permitted such a course to be adopted. Though these fourStates were a part of the notification dated 6[th] March 2020, it is stated inGthe letter dated 22[nd] February 2021 that there were number of petitionspending in this Court as well as in the Manipur High Court concerningdelimitation exercise in North-Eastern States and that in the Court cases,discrepancies in census figures of 2001 in relation to these States werepointed out. In fact, it is stated that a number of notices have beenHissued regarding the said discrepancies. Therefore, the said letter was issued with the approval of the competent authority in which it wasstated that it may not be conducive to grant an extension for the processof delimitation in the four North-Eastern States. The term of the Chairmanof the Delimitation Commission constituted under the first impugnednotification dated 6[th] march 2020 was to expire on 5[th] March 2021. Inview of the aforesaid letter, while extending the term of the Chairmanby one more year by the second impugned notification dated 3[rd] March2021, the said four States were excluded. Thus, in effect, the term of theDelimitation Commission constituted under the notification dated 6[th]March 2020 was extended by a period of one year only in relation to theUnion territory of J & K. By the third impugned notification, the periodwas further extended by a period of two months. Section 10A of theDelimitation Act, 2002 itself permits the postponement of the exerciseof delimitation in certain contingencies. Moreover, the position and thestatus of the newly created Union Territory of J&K under the Constitutionis completely different from the four North-Eastern States. In itsapplicability to the Union Territory of J & K, Sections 4 and 9 of theDelimitation Act, 2002 stand amended by requiring readjustment to becarried out on the basis of the census figures of 2011. In case of theNorth Eastern States, there is no such amendment. Therefore, twounequal cannot be treated as equals. Hence, the argument based on theviolation of Constitutional provisions including Article 14 deserves to berejected.

38. The learned counsel appearing for the petitioners did not disputethat the draft order of delimitation was issued on 14[th] March 2022. Thefinal order was issued on 5[th] May 2022 which was brought into forcewith effect from 20[th] May 2022. While accepting that he has notchallenged these subsequent orders, the learned counsel submitted thatthe petitioners cannot challenge the said order in view of sub-Section (2)of Section 10 which lays down that every such order shall have theforce of law and shall not be called in question in any Court. In fact, thelearned Solicitor General by relying upon a decision of the ConstitutionBench in the case of Megharaj Kothari[2 ]urged that the intention of thelegislature is that once an order passed by the Delimitation Commissionis published in accordance with sub-Section (1) of Section 10, the sameare treated as law, which cannot be questioned in any Court. In paragraph21 of the said decision, the Constitution Bench held that though orderspassed under Sections 8 and 9 of the Delimitation Act, 2002 in accordancewith sub-Section (1) of Section 10 are not part of an act of the Parliament AB

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Abut its effect would be the same. In any event, the order of theDelimitation Commission has not been questioned in this petition.

39. We may note here that there is a great deal of substance inthe argument of the learned Solicitor General that the challenge to thenotification dated 6[th] March 2020 was belatedly made by filing the presentBpetition on 28[th] March 2022 and for the said delay, there is no validexplanation. Moreover, the notification dated 6[th] March 2020 wassubstantially acted upon by completing the exercise of delimitation asthe draft Order was also published on 14[th] March 2022.

40. In the writ petition, the first prayer is for challenging the increaseCin 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 theprovisions of the J&K Reorganisation Act, it is contended that the Actof increasing the number of seats is violative of Articles 81, 82, 170, 330and 332 of the Constitution of India. Article 81 deals with the compositionof the House of the People; Article 82 deals with the readjustment andDallocation of seats of the House of Parliament after the census andArticle 170 deals with legislatures of the States. None of these provisionsdeal with the Legislature of any Union territory. Article 330 deals withthe reservation of seats for Scheduled Castes and Scheduled Tribes inthe House of the People. Article 332 deals with the reservation of seatsEfor Scheduled Castes and Scheduled Tribes in the Legislative Assembliesof the States. Both these provisions do not deal with reservation of seatsfor the House of legislature of Union Territories. In any case, evenassuming that Article 332 can be applied to the reservation of seats forScheduled Castes and Scheduled Tribes in the Legislatures of Unionterritories, it is not shown how the act of increasing the total number ofFseats in the legislature will offend Article 332, so long as the reservationis maintained as per the formula provided under Article 332.

41. Another argument sought to be made is that the provisionmade for 114 seats in the legislature of the newly constituted UnionTerritory of J & K is illegal. This submission calls for no consideration asGthere is no challenge to the validity of sub-section (1) of Section 60 ofthe J&K Reorganisation Act.

42. Another argument was canvassed that the Delimitation Orderof 2008 published by the Election Commission cannot be deviated from.The perusal of the said Order shows that it reproduces the delimitationH

of the Parliamentary and Legislative Assembly Constituencies made bythe Delimitation of Parliamentary and Assembly Constituencies Ordersof 1976 and 1995 for the State of Jammu and Kashmir. Both the ordersof 1976 and 1995 have been expressly modified by the J&KReorganisation Act by virtue of Sections 11(4) and 14(5) as provided inthe second and third Schedules thereto. Hence, the argument deservesto be rejected.

43. The petitioners have overlooked the fact that clause (b) ofsub-Section (1) of Section 62 of the J&K Reorganisation Act has furtheramended the Delimitation Act, 2002 by providing that words and figures‘census held in the year 2001’ appearing in the Delimitation Act shall beconstrued as ‘census held in the year 2011’. To its application to theUnion territory of J & K, the year 2001 in sub-section (1) of Section 9 ofthe Delimitation Act, 2002 has been substituted by the year 2011 andtherefore, distribution of seats in the House of the People and seatsassigned to the Legislative Assembly will have to be readjusted on thebasis of 2011 census and the delimitation will have to be carried out onthe basis of the figures of the census held in the year 2011. The effect ofSection 63 is that once the exercise of readjustment/delimitation is madeon the basis of 2011 census figures, the same will be frozen till the relevantfigures of the first census taken after 2026 are available. Therefore, theexercise of delimitation/readjustment of the seats in the Union Territoryof J & K was required to be made by the Delimitation Commission onthe basis of the figures of the 2011 census. In view of Section 63, furtherreadjustment can be carried out only after the publication of figuresfrom the census held after the year 2026.

44. Reliance placed on the opinion of the learned Attorney Generalof India is misplaced as it deals only with the provisions of the A.P.Reorganisation Act, 2014. The petitioners cannot rely upon the answergiven by Hon’ble Minister in the Lok Sabha as it deals with delimitationof Constituencies in Telangana in the context of Article 170. In anyevent, the said opinion as well as the answer given by the Hon’ble Ministerhave no bearing on the interpretation of the J&K Reorganisation Act.

45. A vague attempt was made by the learned senior counselappearing for the petitioners to submit that the exercise which isundertaken for the newly created Union territory of J & K was notundertaken on the basis of the Uttar Pradesh Reorganisation Act, 2000and Andhra Pradesh Reorganisation Act, 2014. In both the Acts, there is AB

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Ano provision which is pari materia with clause (b) of sub-Section (1) ofSection 62 of the J&K Reorganisation Act which amended the provisionsof the Delimitation Act 2002 in its applicability to the newly formed UnionTerritories by substituting the year 2001 with 2011.

46. Thus, there is absolutely no merit in any of the contentionsBraised by the petitioners. We may, however, clarify that the findingsrendered in the judgment are on the footing that the exercise of powermade in the year 2019 under clauses (1) and (3) of Article 370 of theConstitution is valid. We are aware that the issue of the validity of theexercise of the said powers is the subject matter of petitions pendingbefore this Court. Therefore, we have not dealt with the issue of validity.CNothing stated in this judgment shall be construed as giving our imprimaturto the exercise of powers under clauses (1) and (3) of Article 370 of theConstitution.

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

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