Orders finalised, can't be challenged after gazette notification, SC told

New Delhi: The Ministry of Home Affairs, on behalf of the Union of India and the Union Territory of Jammu and Kashmir has filed a response along with the Election Commission of India before the Supreme Court opposing the pleas challenging the formation of the Delimitation Commission, reported LiveLaw.in on Tuesday.

The responses have been filed in the petition filed by J&K residents Haji Abdul Gani Khan and Mohammad Ayub Mattoo in 2022 challenging the delimit

According to the petitioners, the impugned Delimitation notification, which directed the process of delimitation to be carried out in UT of J&K to be done on the basis of the 2011 population census, is unconstitutional as no population census operation was carried out in 2011 for UT of J&K. The plea also challenges the increase in number of seats from 107 to 114 in the UT of J&K to be ultra vires Articles 81, 82, 170, 330 and 332 of the Constitution and Section 63 of the Jammu and Kashmir Reorganisation Act, 2019. It is emphasised that the change not being proportionate with the respective population is also violative of Section 39 of the UT Act.

The response filed by the Ministry stated that the Delimitation Commission was setup two years prior to the date of institution of the Writ Petition and has since completed its exercise and its orders have been issued via the Gazette of India and the Petitioners have failed to justify the delay.

The Union further stated that, "Section 10(2) of the Delimitation Act, 2002 bars the challenge to the orders of the Delimitation Commission once they are published in the Gazette of India." The counter-affidavit stated that the principle was also upheld in the matter of Meghraj Kothari vs Delimitation Commission. Thus if the prayers of the petitioners are allowed, then the orders of the Delimitation Commission which had attained finality when they were published in the Gazette of India would be rendered infructuous. The counter of the Union also stated that it would be violative of Article 329 of the Constitution.

The Counter filed by the Union also stated that the Election Commission had stated that representations made by the Petitioners are completely misplaced and have been arrived at without a clear and comprehensive understanding of the Jammu and Kashmir Reorganisation Act 2019. It was also pointed out that the Election Commission has stated that since the Delimitation Commission is being constituted under section 62 of the 2019 Act, there appeared no necessity for any separate action by the Election Commission.

The Union's reply also stated that there is no contradiction between Section 60, 61 and 62 of the 2019 Act. "It is submitted that the 2019 Act provide for two alternative mechanisms to carry out delimitation for the Union Territory of Jammu and Kashmir. By virtue of Sections 60-61, while the power to determine delimitation is conferred on Election Commission, Section 62(2) and 62(3) confers powers to carry out delimitation on the Delimitation Commission constituted under Section 3 of the Delimitation Act." There exists a synergy between Sections 60, 61, 62 and 63 of the 2019 Act and is free from any contradictions and the 2019 Act provides for two alternative mechanisms in order to conduct the delimitation for the Union Territory of Jammu and Kashmir, the reply added