The delimitation process used to redraft the Legislative Assembly and Lok Sabha seats in the Union Territory of Jammu & Kashmir was contested in a petition that the Supreme Court dismissed on February 13. 

The order was issued by a bench made up of Justice S.K. Kaul and Justice A.S. Oka in response to a petition that, among other things, contested the delimitation operation that had been carried out in the Union Territory of Jammu and Kashmir in accordance with recent announcements. The dismissal of the petition should not be interpreted as endorsing the choices made in respect to Article 370, since the matter is still pending before a Constitution Bench, Justice Oka stated while reading the operative portion of the ruling. 

The petitioners' senior attorney, Mr. Ravi Shankar Jandhyala, argued that Article 170(3) of the Indian Constitution, which had banned delimitation until the first census after 2026, and other provisions prohibited the delimitation exercise. He had contended that the delimitation process was being done against the will of the law and the constitution. He had also argued that no more delimitation exercises could have been done after the delimitation order was given in 2008. After 2008, all delimitation-related activities must be carried out by the Election Commission, not a Delimitation Commission, the Senior Counsel had emphasised.

Although the Senior Counsel for the petitioner had asserted orally that the provisions of the Jammu and Kashmir Reorganisation Act, 2019, are in violation of the Indian Constitution, Justice Oka had emphasised that the constitutional validity of the relevant provisions of the statute has not been contested in the petition. The Solicitor General of India, Mr. Tushar Mehta, stated at the outset of his counterarguments that the legitimacy of the Reorganisation Act's provisions had not been contested in the current writ suit.

According to the petition submitted by Advocate on Record Sriram Parakeet, the contested Delimitation notification, which required the UT of J&K to conduct its delimitation process in accordance with the 2011 Population Census, is unconstitutional because the UT of J&K did not conduct a population census operation in 2011. The petition further argued that the Delimitation Commission lacked the authority to carry out the exercise because, according to Sections 9(1)(b) of the Representation of Peoples Act, 1950, and 11(1)(b) of the Delimitation Act 2022, the Election Commission was given the authority to update the Delimitation order by making the necessary adjustments in light of subsequent events, but that authority could not be used to alter the boundaries, areas, or extent of any constituency without notifying the relevant parties. It claimed that because the Commission was disbanded in 2007 and the Delimitation of Parliamentary and Assembly Constituencies Order was subsequently issued in 2008, the Delimitation Commission cannot be formed under Section 3 of the Delimitation Act 2002. The respondents are ineligible to conduct the exercise at this time since the delimitation has been finished and the Delimitation Commission has ceased to be relevant. The Jammu and Kashmir Constitution's 29th Amendment, passed in 2002, put a hold on the delimitation process until until 2026. Even though Article 170 of the Indian Constitution states that the next delineation exercise would only take place after 2026, the petition claims that implementing the delimitation procedure in the UT of J&K is not only arbitrarily done but also goes against the Constitution's fundamental principles. The petition further stated that the Minister of State for Home Affairs stated in response to Lok Sabha Unstarred Question No. 2468 on August 3, 2021 that "As per Article 170(3) of the Constitution, the total number of seats in the Assembly of each State will be readjusted after the first Census is published. The question related to the provision in the AP Reorganisation Act, 2014, to increase the number of seats in the Telangana and Andhra Pradesh Assemblies."

The petition further argued that the Jammu and Kashmir Reorganisation Act of 2019's Section 63 and the Constitution's Articles 81, 82, 170, 330, and 332 were violated by the increase in the number of seats in the UT of Jammu and Kashmir from 107 to 114 (including 24 seats in Pakistan Occupied Kashmir). It was emphasised that Section 39 of the UT Act was also broken because the change was not proportionate to the relevant population. According to the 2004 Guidelines and Methodology for the Delimitation of Assembly and Parliamentary Constituencies, the total number of seats in the Legislative Assemblies of all States, including the UT of NCR and Pondicherry, was set based on the 1971 census, which was to be kept constant until the first census to be taken after the year 2026.

Case Title: Haji Abdul Gani Khan And Anr. v. UoI And Ors. 
Citation: WP(C) No. 237/2022