The Supreme Court on Friday sought reply from the Centre, the Jammu and Kashmir administration, and the Election Commission (EC), on a plea against the constitution of the Delimitation Commission to redraw the Assembly and Lok Sabha constituencies in the Union Territory.
Counsel representing the petitioners submitted before a bench headed by Sanjay Kishan Kaul that the delimitation exercise, which was carried out recently, was contrary to the scheme of the Constitution, as the alteration of boundaries could not be done.
The bench, also comprising Justice M.M. Sundresh, then asked counsel why the petitioners did not challenge the constitution of the Commission, which was formed some time ago. As counsel contended it is the Election Commission, as per delimitation order, which is empowered to do any changes, the bench further queried from the petitioners' counsel as to why his clients did not challenge the formation of the Commission itself?
Solicitor General Tushar Mehta said the plea contends that delimitation can be conducted only by the EC and not the Delimitation Commission.
While objecting to some submissions, the bench told counsel that Kashmir was always part of India and just a special provision was removed.
Mehta said their case is that after Article 370 is gone, the census will only take place in 2026. He further added that delimitations are of two types: one based on geography done by the Delimitation Commission, and the other, by the Election Commission in connection with reservation of seats.
The petitioner' counsel further argued that the government will place the delimitation order before Parliament, which would further complicate the matter. To this, the bench asked why the petitioners didn't take it up two years ago.
After hearing the arguments, the top court issued notice to the Centre, J&K administration, and the poll panel, giving them six weeks to file their response, and scheduled the matter for further hearing on August 30.
The plea moved by Haji Abdul Gani Khan and Dr. Mohammad Ayub Mattoo, both residents of Kashmir, sought directions seeking a declaration that increase of number of seats from 107 to 114 in Union Territory of Jammu & Kashmir is ultra vires the constitutional provisions such as Articles 81, 82, 170, 330, and 332 and statutory provisions particularly under section 63 of the Jammu & Kashmir Reorganisation Act, 2019.
The plea also urged the top court to issue to direction to declare notification issued on March 6, 2020, constituting the Delimitation Commission to take up delimitation in the UT of J&K and states of Assam, Arunachal Pradesh, Manipur and Nagaland is violative of Article 14 of the Constitution.
"In fact, in the State of Jammu and Kashmir, the census operation was completed in 2001, but the delimitation was done in 1995. Even on this count, the entire process adopted is unconstitutional as there is no population census operation during 2011 at all for Jammu and Kashmir," said the plea.
The plea argued that if August 5, 2019 was to unite the Jammu and Kashmir state with India, then the delimitation process defeats the "new order" of one nation and one Constitution in the country. It said: "While Article 170 of the Constitution of India provides that the next delimitation in the country will be taken up after 2026, why has the UT of Jammu and Kashmir been singled out?"
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