SC seeks Centre, J&K, ECI replies on plea against delimitation comm
New Delhi: The Supreme Court on Friday sought a response from the Centre, Jammu, and Kashmir administration, and Election Commission of India (ECI) on a plea of two Kashmir residents challenging the government's decision to constitute the delimitation commission for redrawing the assembly and Lok Sabha constituencies in the Union Territory.
A bench of Justices Sanjay Kishan Kaul and MM Sundresh issued notice to the Centre and Election Commission of India and sought their responses within six weeks and said that the rejoinder affidavit shall be filed in two weeks thereafter.
At the outset, counsel appearing for two Srinagar residents Haji Abdul Gani Khan and Dr. Mohammad Ayub Mattoo, said that contrary to the scheme of the constitution, this delimitation exercise was carried out and alteration of boundaries and inclusion of extended areas could not be done.
The bench said that the delimitation commission was formed sometime back and asked the petitioners, where were they during that time and why did not they challenge the constitution of the commission. The counsel said that as per the delimitation order, it is the election commission that is empowered to do any changes. The bench said that it is asking a specific question under Article 32 of the constitution why you have not challenged the formation of the commission itself and do you challenge the abrogation of Article 370 also. The bench told the counsel, who was making objectionable submissions, to choose his words properly and said that Kashmir was always part of India and just a special provision was removed.
Solicitor General Tushar Mehta said that effectively the plea is two-fold and that delimitation can be conducted only by the Election Commission of India and not the delimitation commission. Mehta said that secondly, they have raised questions about the census.
The answer to the questions is in the reorganisation Act. There are two types of delimitations. One is geography which is conducted by the delimitation commission and the second is by election commission with regard to reservation of seats , he said.
Mehta said that the petitioners' case is that once Article 370 is gone, the census will only take place in 2026. The bench then noted that the petitioners have not challenged the abrogation of Article 370 of the Constitution and therefore pleadings concerning Article 370 are to be ignored. It said that the challenge is about the delimitation pursuant to the notifications of March 6, 2020, and March 3, 2021, and directed the Centre and ECI to file their replies.
Counsel for the petitioners said that the government will place the delimitation order before Parliament and it further complicates the matter.
The bench told the counsel that he wants the court to stop the government from tabling the paper before Parliament, If you were too anxious, then why didn't you take it up two years ago? .
It posted the matter for further hearing on August 30. Meanwhile, Chief Election Commissioner Sushil Chandra said on Friday that population was an important but not the sole criteria while carrying out the delimitation exercise in Jammu and Kashmir. He asserted that the union territory has to be seen as "one unit" where the entire population has to be given representation in 90 assembly constituencies.
Chandra, who was an ex-officio member of the delimitation panel which gave its final order on restructuring the assembly seats in Jammu and Kashmir earlier this month, also said there were "lots of problems" with the earlier delimitation and those have been corrected now.
He was responding to questions on criticism from certain quarters that going by the population ratio, Kashmir Division got a lesser number of seats as compared to Jammu. "Population is only one of the criteria of the delimitation. Besides population, there are four other criteria as per provisions of the Delimitation Act and the Jammu and Kashmir Reorganisation Act which say that consideration will also have to be given to the physical conditions, and communication facilities, public conveniences and the administrative units of that area. So these are four other criteria that have to be looked into. It (population) is one of the important criteria but not the sole criteria. That one should keep in mind," Chandra said. Chandra, who demits the office of CEC on Saturday, said Jammu and Kashmir should be seen as one unit. "It cannot be (seen) in different parts. It is one single union territory. The whole population will have to be given representation in 90 constituencies. The (Kashmir) valley has been given less or Jammu (division) has been given less — it is one whole unit comprising 20 districts and 207 tehsils. We will have to see it as one whole unit."
