The Supreme Court on Monday affirmed the validity of the delimitation exercise carried out in Jammu and Kashmir (J&K) for redrawing of poll constituencies in the Union Territory (UT) that increased the tally of assembly seats from 83 to 90 following the nullification of the region’s special status under Constitution’s Article 370.

A bench of justices Sanjay Kishan Kaul and AS Oka dismissed petitions of Srinagar residents who challenged the legality of the constitution of the delimitation commission and the subsequent process.

Reading out the operative part of the judgment, justice Oka clarified that the verdict will not have a bearing on the pending cases related to Article 370 and the consequent reorganisation of J&K into two UTs. The detailed judgment is yet to be released.

The judgment came on the petition of Haji Abdul Gani Khan and Mohammad Ayub Mattoo, who argued the delimitation exercise for J&K could have waited till 2026 when it has to be done for Lok Sabha constituencies on the basis of the 2021 census. The two, in their petition filed through advocate Sriram P, questioned the legality of the delimitation exercise conducted in terms of the notifications issued in 2020, 2021, and 2022, arguing that only the Election Commission of India (ECI) was authorised to carry out this exercise.

On May 5, 2022, the three-member delimitation commission finalised the UT’s new electoral map, marking the first step for elections in the region since its special status was scrapped in August 2019.

In its final order, the commission earmarked 43 seats to the Hindu-majority Jammu region and 47 to Muslim-majority Kashmir – making up a total of 90 seats for the UT’s assembly, up from the earlier strength of 83.

Out of the seven new seats added, six were allotted to Jammu and one to Kashmir. Earlier Jammu had 37 seats and Kashmir 46. This brings the Kashmir representation down to 52.2% from 55.4% of the total seats and takes the Jammu representation up to 47.8% from 44.6%. The exercise was carried out on the basis of the 2011 Census, which put the population of J&K at 12.5 million, with 56.2% in Kashmir and 43.8% in Jammu.

The delimitation commission, which included former Supreme Court judge Ranjana Prakash Desai, chief election commissioner Sushil Chandra and chief electoral officer of J&K KK Sharma, was set up in March 2020 with five parliamentarians from the UT as associate members.

J&K lost its special status and statehood on August 5, 2019, when the Union government moved to void Article 370 of the Constitution. At an all-party meeting in June 2021, Prime Minister Narendra Modi said J&K’s statehood will be restored after elections are held in the region, on the basis of the delimitation process.

But parties from the region, which remained bitterly opposed to the scrapping of its special status, wanted statehood to be restored before delimitation and elections. The Union government rejected the demand .

Assembly seats in the erstwhile state of J&K were last redrawn in 1995, based on the 1981 Census. The last assembly polls in J&K were conducted in 2014.

The Union home ministry its response in September 2022 argued that delimitation became final after publication in the gazette and that legal challenge of the commission’s draft is not possible at this stage.

The Delimitation Act of 2002 states that once the commission’s orders are published in the Union Gazette and take effect, no legal process can be initiated to challenge their validity or correctness.

Concerning the challenge to the ECI’s exclusive authority to carry out the exercise, the Union government pointed out that the commission, in a letter dated September 2, 2019, stated that because the delimitation commission is being formed under the 2019 J&K Re-organisation Act read with the 2002 Delimitation Act, there appeared to be no need for any separate action by the statutory body.

The Union government argued that the 2019 Act provides for two alternative mechanisms to carry out delimitation for the UT of J&K — first, by the ECI, and second, by the delimitation commission. It said there was no legal bar to setting up a commission in 2020 to redraw constituencies in J&K following the dissolution of the 2002 delimitation commission.

Concerning the petitioner’s objection to the division of J&K into UTs of J&K and Ladakh, the government maintained that the division was duly ratified by both Houses of Parliament through the passage of the 2019 Act. “The Parliament considered it necessary to take this measure in the larger interest of Jammu, Kashmir and Ladakh,” the home ministry said in its affidavit.

Utkarsh Anand is Legal Editor at the Hindustan Times. He writes on law, judiciary and governance. ...view detail