| Headnote |
Constitution of India – Arts.170 and 239A – Jammu and Kashmir Reorganisation Act, 2019 – s.13 – Art. 170 forming part of Chapter III of Part VI of the Constitution under the title “The State Legislature” – Issue of applicability of Art.170 to the Union Territory of J&K – Held: As far as the Legislative Assembly of the Union territory of J&K is concerned, Art.170 will have no application as it forms a part of Chapter III of Part VI which deals with only the State Legislature – It has no application to the Legislatures of Union Territories – The reason is that the Legislative Assemblies of the concerned Union Territories will be governed by the law made by the Parliament in accordance with Art. 239A and not by the provisions of Chapter III of Part VI – By virtue of s. 13 of the J&K Reorganisation Act, with effect from 31st October 2019, Art. 239A became applicable to the Union Territory of J&K. Delimitation Act, 2002 – s. 9 – Jammu and Kashmir Reorganisation Act, 2019 – ss. 60 and 62 – Action of constituting a Delimitation Commission for the Union Territory of Jammu and Kashmir under provisions of the Delimitation Act, 2002 and exercise of delimitation undertaken by the Commission – Readjustment of seats – Legality and validity of – Held: Part V of the J&K Reorganisation Act deals with the Delimitation of Constituencies – By virtue of clause (a) of subsection (1) of s. 62, the provisions of the Delimitation Act, 2002 were made applicable to the Union Territory of J & K with effect from 31st October 2019 – Sub-section (1) of s. 60 provides that the exercise of the division of the newly constituted Union Territory into 90 assembly constituencies and providing for reservation may be undertaken by the Election Commission – However, the purport of s. 62 is that if a Delimitation Commission is constituted under the Delimitation Act 2002, the exercise provided by clauses (a) to (c) of sub-section (1) of s. 60 shall be carried out by the Delimitation Commission – Sub-section (2) of s. 62 refers to readjustment of the constituencies – Purport of sub-section (2) of s. 62 is that readjustment means the creation of 90 constituencies in the newly set up Union territory – Thus, the process of readjustment contemplated by sub-section (2) of s. 62 is nothing but the exercise of delimitation under sub-section (1) of s. 60. Delimitation Act, 2002 – s. 9 – Jammu and Kashmir Reorganisation Act, 2019 – ss. 62 and 63 – Constitution of Delimitation Commission for the Union Territory of Jammu and Kashmir – Exercise of delimitation/ readjustment of the constituencies undertaken on the basis of 2011 census figures – Challenge to – Held: By virtue of clause (b) of subsection (1) of s. 62 of the J&K Reorganisation Act, the year 2001 appearing in sub-section (1) of s. 9 of the Delimitation Act, 2002 will have to be read as 2011 – Thus, nothing illegal about the exercise of delimitation/ readjustment of the constituencies undertaken by the Delimitation Commission for purposes of dividing the Union Territory into 90 constituencies on the basis of the 2011 census figures – Clause (b) of sub-Section (1) of s.62 of the J&K Reorganisation Act amended the Delimitation Act, 2002 by providing that words and figures ‘census held in the year 2001’ appearing in the Delimitation Act shall be construed as ‘census held in the year 2011’ – To its application to the Union territory of J & K, the year 2001 in sub-section (1) of s. 9 of the Delimitation Act, 2002 has been substituted by the year 2011 and therefore, distribution of seats in the House of the People and seats assigned to the Legislative Assembly will have to be readjusted on the basis of 2011 census and the delimitation will have to be carried out on the basis of the figures of the census held in the year 2011 – Effect of s.63 is that once the exercise of readjustment/delimitation is made on the basis of 2011 census figures, the same will be frozen till the relevant figures of the first census taken after 2026 are available – Therefore, the exercise of delimitation/readjustment of the seats in the Union Territory of J & K was required to be made by the Delimitation Commission on the basis of the figures of the 2011 census – In view of s.63, further readjustment can be carried out only after the publication of figures from the census held after the year 2026. Delimitation Act, 2002 – ss. 10(6) and 10A – Jammu and Kashmir Reorganisation Act, 2019 – s. 62 – Action of constituting a Delimitation Commission for the Union Territory of Jammu and Kashmir – Delimitation exercise – Time limit provided u/s. 10(6) – If mandatory – Held: s. 10A of the Act, 2002 itself indicates that the time limit of 31st July 2008 fixed under sub-Section (6) of s.10 is not sacrosanct as it confers a power on the Hon’ble President to defer the delimitation exercise in a State under certain circumstances – Sub-section (6) of s.10 of the Delimitation Act, 2002 uses the word “endeavour” – Thus, the time limit provided in sub-section (6) of s. 10 was never intended to be mandatory – While amending s. 2(f) of the Delimitation Act by the J&K Reorganisation Act, sub-section (6) of s. 10 has not been amended for enlarging the period provided thereunder – However, the intention of the legislature as reflected in sub-sections (2) and (3) of s.62 of the J&K Reorganisation Act is crystal clear – The very fact that the duty of making the readjustment as per sub-sections (2) and (3) of s. 62 on the basis of the 2011 census figures has been entrusted to the Delimitation Commission suggests that the legislature intended that the Delimitation Commission for the Union Territory of Jammu & Kashmir will remain unaffected by the requirement of completing the exercise by the end of July 2008 – The provisions of sub-Sections (2) and (3) of s.62 will have to be interpreted in a manner that gives effect to the intention of the legislature – If it is held that due to the failure of the legislature to modify the time limit provided in sub-Section (6) of s. 10 of the Delimitation Act, 2002, the Central Government is powerless to appoint a Delimitation Commission for the newly created Union territory, the provisions of s. 62 of the J&K Reorganisation Act will be rendered nugatory. Delimitation Act, 2002 – Delimitation Commission for the Union Territory of Jammu and Kashmir – Chairperson of the Delimitation Commission – Term of appointment of the Chairperson – Under notification dated 6th March 2020, appointment of the Chairperson of the Delimitation Commission who was a retired Judge of this Court was for a period of one year – By notification dated 3rd March 2021, the said period was extended up to two years – By third impugned notification dated 21st February 2022, the said period of two years was extended to two years and two months – Held: Once the Delimitation Commission was established, there is nothing wrong if the Central Government extended the period of appointment of the Chairperson till the task of delimitation/readjustment was completed – Delimitation Act, 2002 is silent about the term of the appointment of the Chairperson. Constitution of India – Arts. 3, 4 and 239A – Conversion of an existing State into one or more Union territories – Power of the Parliament – Conjoint reading of Arts. 3,4 and 239A – Held: Parliament by making a law can convert an existing State into one or more Union territories. Practice and Procedure – Constitutional validity of a statute – Challenge to – Challenge has to be specifically pleaded – Held: When a party wants to challenge the constitutional validity of a statute, he must plead in detail the grounds on which the validity of the statute is sought to be challenged – The Constitutional Courts cannot interfere with the law made by the Legislature unless it is specifically challenged by incorporating specific grounds of challenge in the pleadings – The reason is that there is always a presumption of the constitutionality of laws – The burden is always on the person alleging unconstitutionality to prove it – A Constitutional Court cannot casually interfere with legislation made by a competent Legislature only by drawing an inference from the pleadings that the challenge to the validity is implicit. Interpretation of Statutes – Held: A statute cannot be interpreted in a manner that will render some of its provisions otiose – A statute must be construed and interpreted in such a manner as to make it workable. Doctrines/ Principles – Equality – Two unequals cannot be treated as equals. Words and Phrases – Word “endeavour” – Use of the word in Subsection (6) of s. 10 of the Delimitation Act, 2002. |
