Supreme Court of India
HAJI ABDUL GANI KHAN & ANR.versusUNION OF INDIA & ORS.
- Citation
- 2023 INSC 124
- Decided
- 13 February 2023
- Disposal
- Dismissed
- Bench
- SANJAY KISHAN KAUL
Holding
Article 170 does not apply to the Union Territory of Jammu and Kashmir, and the delimitation of its Assembly and Parliamentary constituencies under the Jammu and Kashmir Reorganisation Act, 2019 and the Delimitation Act, 2002—read in conjunction with Articles 3, 4 and 239A—is constitutionally valid, rendering the petition untenable.
Summary
The petition challenged the increase in seats of the Jammu and Kashmir Union Territory Legislative Assembly and the constitution of a Delimitation Commission under the Jammu and Kashmir Reorganisation Act, 2019 and the Delimitation Act, 2002. The Court held that Article 170, which governs State legislatures, does not apply to Union Territories and therefore cannot limit the composition of J&K's Assembly. By a conjoint reading of Articles 3, 4 and 239A, the Parliament was empowered to create the Union Territory and its legislature, making the delimitation exercise under Sections 60, 62 and 63 of the Reorganisation Act constitutionally valid. The time‑limit provision in Section 10(6) of the Delimitation Act was deemed non‑mandatory, and the extensions of the Chairperson’s term were permissible. The exclusion of four North‑Eastern states from the Commission’s purview and the increase of seats from 107 to 114 (effectively 90) were also upheld. Consequently, the writ petition was dismissed.
Issues considered
- The applicability of Article 170 to the Legislative Assembly of the Union Territory of Jammu and Kashmir
- The constitutional validity of the delimitation process under the Jammu and Kashmir Reorganisation Act, 2019 and the Delimitation Act, 2002
- Whether the time‑limit in Section 10(6) of the Delimitation Act, 2002 is mandatory for the Union Territory
- The legality of the appointment and term extensions of the Chairperson of the Delimitation Commission
- The propriety of excluding Arunachal Pradesh, Assam, Manipur and Nagaland from the Delimitation Commission’s jurisdiction
- Whether the increase in the number of Assembly seats violates Articles 81, 82, 170, 330 and 332 of the Constitution
- The maintainability of the petition in view of delay and lack of specific challenge to the J&K Reorganisation Act
Legislation cited
- Constitution of Indias. Art.170, s. Art.2, s. Art.239A, s. Art.239AA, s. Art.3, s. Art.4
- Delimitation Act, 2002s. s.10, s. s.10A, s. s.4, s. s.9
- Jammu and Kashmir Reorganisation Act, 2019s. s.11, s. s.13, s. s.14, s. s.60, s. s.62, s. s.63
- Representation of the People Act, 1950
Subjects
Article 170Union TerritoryJammu and KashmirDelimitationConstitutional validityArticle 239AJ&K Reorganisation ActLegislative AssemblySeat allocationCensus 2011Section 10(6) Delimitation ActEqualityArticle 14Parliamentary constituenciesReservationArticle 3Article 4
Judgment
[2023] 5 S.C.R. 503 503
HAJI ABDUL GANI KHAN & ANR. A
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 237 of 2022)
FEBRUARY 13, 2023 B
[SANJAY KISHAN KAUL AND ABHAY S. OKA, JJ.]
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
C
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 D
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.
E
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
F
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 sub-section (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 G
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
H
503
504 SUPREME COURT REPORTS [2023] 5 S.C.R.
A 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
B
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
C undertaken on the basis of 2011 census figures – Challenge to –
Held: By virtue of clause (b) of sub-section (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
D 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
E ‘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
F 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
G 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.
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 505
ORS.
Delimitation Act, 2002 – ss.10(6) and 10A – Jammu and A
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
B
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 C
(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
D
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 E
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
F
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 6 th March 2020, appointment of the
Chairperson of the Delimitation Commission who was a retired Judge G
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 21 st 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 H
506 SUPREME COURT REPORTS [2023] 5 S.C.R.
A 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
B 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
C – 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
D 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
E 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.
F Doctrines/ Principles – Equality – Two unequals cannot be
treated as equals.
Words and Phrases – Word “endeavour” – Use of the word
in Sub-section (6) of s.10 of the Delimitation Act, 2002.
Dismissing the writ petition, the Court
G
HELD: 1. Issue of applicability of Article 170 having the
title “Composition of the Legislative Assemblies” to the Union
Territory of J & K.
1.1. Article 170 forms part of Chapter III under the title
H “The State Legislature”. Chapter III has been incorporated in
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 507
ORS.
Part VI of the Constitution which deals with the States. Though A
much emphasis was laid on the violation of the provisions
contained in the second Proviso to Clause (3) of Article 170 by
the petitioners, but the said Article does not deal with the
legislatures of Union Territory at all. Articles 239A and 239AA
which are included in Part VIII of the Constitution are the Articles
B
that deal with the creation of a body to function as legislature and
Council of Ministers for certain Union Territories. [Para 18][532-
B-D]
1.2. Article 239A as it originally stood provided that
Parliament may by law create for the Union Territory of
Puducherry a body to function as a Legislature for the Union C
Territory or a Council of Ministers or both. Such a body to act as
a Legislature of the Union Territory covered by Article 239A
may be elected or partly nominated and partly elected. By virtue
of Section 13 of the J&K Reorganisation Act, with effect from
31st October 2019, Article 239A became applicable to the Union D
Territory of J and K. As noted by clause (2) of Article 239A, the
law contemplated by clause (1) of Article 239A shall not be deemed
to be an amendment to the Constitution for the purposes of Article
368 notwithstanding that it contains any provision which amends
or has the effect of amending the Constitution. [Para 18][532-G-
H; 533-A-B] E
1.3. On a conjoint reading of Articles 3,4 and 239A, it is
found that:- (a) Parliament by making a law can convert an existing
State into one or more Union territories; (b) Parliament is
empowered by law to create a body of legislature for the Union
territories of Puducherry and J&K. Accordingly, sub-Section (2) F
of Section 14 of the J & K Reorganisation Act provides that there
shall be a Legislative Assembly for the Union Territory of J &
K.; and (c) Even if the law made by Parliament creating a body of
legislature for Union territories of Puducherry and J&K has the
effect of amending certain parts of the Constitution, it shall not G
be deemed to be an amendment of the Constitution for the
purposes of Article 368. [Para 19][533-B-E]
1.4. As far as the Legislative Assembly of the Union
territory of J & K is concerned, Article 170 will have no
H
508 SUPREME COURT REPORTS [2023] 5 S.C.R.
A 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 Article 239A and not by the provisions of Chapter III of Part
B
VI. As Article 170 is not applicable to the Legislature of the Union
Territory of J & K, the main thrust of the argument that certain
provisions of the J&K Reorganisation Act and actions taken
thereunder are in conflict with Article 170 and in particular Clause
(3) thereof is clearly misconceived and deserves to be rejected.
C [Para 23][534-D-F]
Issue of delimitation of constituencies of the Legislative
Assembly of the Union territory of J and K.
2.1. There were two earlier enactments dealing with the
establishment of the Delimitation Commission. The first one was
D the Delimitation Commission Act, 1962 and the second one was
the Delimitation Act, 1972. Both the Acts were not applicable to
the State of Jammu and Kashmir as the definition of the State
incorporated in both Acts specifically excluded the State of Jammu
and Kashmir. The same is the case with the Delimitation Act,
E 2002. Section 3 of the J&K RP Act laid down the requirement of
the establishment of the Delimitation Commission which provided
that the Delimitation Commission shall distribute the seats in
the Legislative Assembly to single member territorial
constituencies and delimit them having regard to various factors
mentioned in sub-section (2) of Section 3. Section 4-B of the J&K
F RP Act provided for the Delimitation Commission to pass an order
regarding the delimitation of constituencies and publish the same.
In fact, the Delimitation of Assembly Constituencies Order, 1995
was issued which was applicable to the State of Jammu and
Kashmir. [Para 24][534-G-H; 535-A-B]
G 2.2. By virtue of sub-section (5) of Section 14 of the J&K
Reorganisation Act, the said Delimitation Order of 1995 was
amended as provided in the Third Schedule thereof. The Third
Schedule contains the details of the amendments to the
delimitation of the assembly constituencies made by the said
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 509
ORS.
Delimitation Order of 1995 in relation to the existing 83 assembly A
constituencies out of a total 107 as provided in sub-section (3) of
Section 14. 24 constituencies covered by the Pakistan occupied
area were obviously not covered by the Delimitation Order. Thus,
by virtue of sub-section (5) of Section 14, the delimitation of 83
constituencies of the Legislative Assembly of the Union Territory
B
of J & K was incorporated in the form of the Third Schedule
which sets out the boundaries of and the areas incorporated in
the new individual 83 constituencies. [Para 25][535-D-F]
2.3. Part V of the J & K Reorganisation Act deals with the
Delimitation of Constituencies. By virtue of clause (a) of sub-
section (1) of Section 62, the provisions of the Delimitation Act, C
2002 were made applicable to the Union Territory of J & K with
effect from 31st October 2019. [Para 26][535-F-G]
2.4. The delimitation of 83 constituencies of the Union
Territory was made under the J&K Reorganisation Act and was
incorporated in the Third Schedule as provided in sub-section D
(5) of Section 14. By virtue of the mandate of sub-section (1) of
Section 60, the total number of seats in the Legislative Assembly
of the Union Territory was required to be increased from 107 to
114. Thus, by excluding 24 seats from Pakistan occupied areas,
the mandate was to increase the seats from 83 to 90. For giving E
effect to the increase in the number of seats as aforesaid, the
exercise of delimitation for dividing the Union Territory into 90
constituencies and determining the number of seats to be
reserved for Scheduled Castes and Schedule Tribes was required
to be undertaken. Sub-section (1) of Section 60 provides that the
said delimitation exercise may be undertaken by the Election F
Commission. However, sub-section (2) of Section 62 provides
that the readjustment of the constituencies as provided under
Section 60 in the successor Union Territory of J & K into
assembly constituencies shall be carried out by the Delimitation
Commission to be constituted under the Delimitation Act, 2002 G
as amended by the J&K Reorganisation Act. Sub-section (1) of
Section 60 provides that the exercise of the division of the newly
constituted Union Territory into 90 assembly constituencies and
H
510 SUPREME COURT REPORTS [2023] 5 S.C.R.
A providing for reservation may be undertaken by the Election
Commission. However, the purport of Section 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 Section 60 shall be carried out by the Delimitation
Commission. However, sub-section (2) of Section 62 refers to
B
the readjustment of the constituencies. But, the purport of sub-
section (2) of Section 62 is that the 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 Section 62 is nothing but the exercise of delimitation under
C sub-section (1) of Section 60. [Para 27][539-A-F]
2.5. The provisions of the Delimitation Act 2002 indicate
what is readjustment. By virtue of Clause (b) of sub-section (1)
of Section 62 of the J&K Reorganisation Act, the year 2001 stands
substituted by the year 2011 in relation to the Legislative
D Assembly of the Union Territory of J & K. Under Section 9 of
the Delimitation Act, 2002, a specific power has been conferred
on the Delimitation Commission of conducting the Delimitation
exercise. By virtue of clause (b) of sub-section (1) of Section 62
of the J&K Reorganisation Act, the year 2001 appearing in sub-
section (1) of Section 9 of the Delimitation Act, 2002 will have to
E be read as 2011. Therefore, the Delimitation Commission
established under the Order dated 6 th March 2020 had to
undertake the exercise of delimitation or readjustment on the
basis of the census figures of 2011 as the earlier exercise of
delimitation of the constituencies of the erstwhile State was not
F made on the basis of the census figures of 2011. For the reasons
stated above, there is nothing illegal about the exercise of
delimitation/readjustment of the constituencies undertaken by
the Delimitation Commission for the purposes of dividing the
Union Territory into 90 constituencies on the basis of the 2011
census figures. [Paras 28 and 29][539-G; 540-D-E; 541-F-H; 542-
G A]
2.6. In the First Schedule to the RP Act of 1950, a total of 6
seats were allocated to the erstwhile State of Jammu and Kashmir
with no reservation for Scheduled Castes and Schedule Tribes.
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 511
ORS.
Section 10 of the J&K Reorganisation Act provides that out of A
the 6 seats allocated to the erstwhile State, 5 will be allocated to
the Union Territory of J & K and one will be to the Union Territory
of Ladakh. That is how Section 11 provides thereof that the
Delimitation of Parliamentary Constituencies Order, 1976 stands
amended as provided in the Second Schedule of the said Act.
B
Thus, the delimitation of the five parliamentary constituencies of
the Union Territory of J & K and one constituency of the Union
Territory of Ladakh was made by virtue of Section 11 as provided
in the Second Schedule. [Para 30][542-B-D]
2.7. Clause (c) of sub-section (1) of Section 60 of the J&K
Reorganisation Act provides that considering the increase in the C
number of seats of the Legislative Assembly, the adjustments in
the boundaries and description of the extent of the Parliamentary
Constituencies in each Union Territory may be made by the
Election Commission. Sub-section (3) of Section 62 provides that
readjustment of the constituencies as provided in Section 11 in D
the successor Union Territories into Parliamentary Constituencies
shall be carried out by the Delimitation Commission. The
readjustment referred to in sub-section (3) of Section 62 is the
adjustment of boundaries and description of the extent of the
Parliamentary Constituencies as provided in sub-section (1) of
Section 60. This became necessary as a result of the requirement E
of readjustment /delimitation of 90 constituencies of the
Legislative Assembly. Therefore, there is no illegality associated
with the delimitation /readjustment of Parliamentary
constituencies of the Union Territory of J & K undertaken by
the Delimitation Commission. [Para 31][542-E-G] F
Legality of the appointment of the Delimitation Commission
by the Notification of 6th March 2020
3.1. When the impugned notification dated 6th March 2020
constituting the Delimitation Commission requires the
Delimitation Commission to undertake the exercise of the G
delimitation of Assembly and Parliamentary Constituencies in the
Union Territory of J & K, it refers to the exercise of readjustment
as provided in sub-section (2) and (3) of Section 62 which is
H
512 SUPREME COURT REPORTS [2023] 5 S.C.R.
A nothing but delimitation exercise contemplated by sub-section
(1) of Section 60 due to the reason of the increase in the
membership of the Legislative Assembly from 83 to 90. Moreover,
the readjustment was necessary to be made on the basis of the
census figures of the 2011 census as contemplated by Section 4
and sub-section (1) of Section 9 of the Delimitation Act, 2002 as
B
amended by clause (b) of sub-section (1) of Section 62 of the
J&K Reorganisation Act. [Para 32][542-H; 544-A-C]
3.2. The Delimitation Act, 2002 contemplates the
constitution of only one Delimitation Commission and not more
than one. The Delimitation Act, 2002 was made applicable for
C the first time to the State of Jammu and Kashmir with effect from
31st October 2019. Even the Delimitation Acts of 1962 and 1972
were not applicable to the State of Jammu and Kashmir. By virtue
of the J&K Reorganisation Act, not only provisions of the
Delimitation Act, 2002 were made applicable to the Union
D Territory of J & K, but a mandatory duty of readjustment of the
constituencies in the Union Territory both of the Legislative
Assembly and Parliament was entrusted to the Delimitation
Commission by sub-Sections (2) and (3) of Section 62. Till 31st
October 2019, the Delimitation Commission for the State/Union
Territory of J & K under the Delimitation Act, 2002 could not
E have been established as the said enactment was not made
applicable to the State of Jammu and Kashmir till then. [Para
33][544-D-E]
3.3. Sub-section (6) of Section 10 of the Delimitation Act,
2002 uses the word “endeavour”. Section 10A of the Delimitation
F Act, 2002 itself indicates that the time limit of 31st July 2008 fixed
under sub-Section (6) of Section 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. Thus, the time
limit provided in sub-section (6) of Section 10 was never intended
G to be mandatory. While amending Section 2(f) of the Delimitation
Act by the J&K Reorganisation Act, sub-section (6) of Section
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 Section 62 of the J&K
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 513
ORS.
Reorganisation Act is crystal clear. The very fact that the duty of A
making the readjustment as per sub-sections (2) and (3) of Section
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
B
of completing the exercise by the end of July 2008. The provisions
of sub-Sections (2) and (3) of Section 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 Section 10 of the
Delimitation Act, 2002, the Central Government is powerless to C
appoint a Delimitation Commission for the newly created Union
territory, the provisions of Section 62 of the J&K Reorganisation
Act will be rendered nugatory. 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
D
it workable. Therefore, the argument based on sub-Section (6)
of Section 10 of the Delimitation Act 2002 will have to be rejected.
[Para 34][544-H; 545-A-E]
3.4. Articles 2 and 3 of the Constitution enable the
Parliament to create new States and Union territories. Accordingly,
the two new Union territories have been created. The J&K E
Reorganisation Act which created the two new Union territories
assigns the role of readjustment of constituencies to the
Delimitation Commission under the Delimitation Act, 2002.
Article 4 of the Constitution permits the Parliament to
incorporate such provisions in the law made in accordance with F
Article 3 for the formation of new States and Union territories,
which may be necessary to give effect to the provisions of the
law. Such a law may also contain provisions as to representations
in Parliament and in the Legislature of the State or States affected
by such law. Therefore, such law which is made under Article 3
can always provide for readjustment of the Constituencies in the G
newly constituted States or Union territories through the
Delimitation Commission. Hence, there is no illegality associated
with the establishment of the Delimitation Commission under
the impugned Order dated 6th March 2020. [Para 35][545-F-H;
546-A] H
514 SUPREME COURT REPORTS [2023] 5 S.C.R.
A 3.5. Under the notification dated 6 th March 2020, the
appointment of the Chairperson of the Delimitation Commission
who was a retired Judge of this Court was for a period of one
year. By the notification dated 3rd March 2021, the said period
was extended up to two years. By the third impugned notification
dated 21 st February 2022, the said period of two years was
B
extended to two years and two months. 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. The Delimitation Act, 2002 is silent about the term
C of the appointment of the Chairperson. [Para 36][546-B-C]
Exclusion of the North-Eastern States from the purview of
the notification dated 6th March 2020
4.1. Another challenge is to that part of the second
impugned notification dated 31st March 2021 by which the States
D of Arunachal Pradesh, Assam, Manipur and Nagaland were
excluded from the purview of the Delimitation Commission
constituted under the notification dated 6th March 2020. In the
counter affidavit filed by the Union of India, reliance has been
placed on the letter dated 22nd February 2021 issued by the Deputy
E Secretary (NE-III), Ministry of Home Affairs, Government of
India. In paragraphs 5 and 6 of the counter affidavit, it is stated
that the Delimitation Commission set up on 12th July 2002 under
the Chairmanship of a retired Judge of this Court had completed
the delimitation exercise in respect of the entire country except
for four North-Eastern States of Assam, Arunachal Pradesh,
F Manipur and Nagaland. It is stated that delimitation of these four
States was deferred due to security reasons. Section 10A of the
Delimitation Act, 2002 permitted such a course to be adopted.
Though these four States were a part of the notification dated 6th
March 2020, it is stated in the letter dated 22nd February 2021
G that there were number of petitions pending in this Court as well
as in the Manipur High Court concerning delimitation exercise
in North-Eastern States and that in the Court cases, discrepancies
in census figures of 2001 in relation to these States were pointed
out. In fact, it is stated that a number of notices have been issued
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 515
ORS.
regarding the said discrepancies. Therefore, the said letter was A
issued with the approval of the competent authority in which it
was stated that it may not be conducive to grant an extension for
the process of delimitation in the four North-Eastern States. The
term of the Chairman of the Delimitation Commission constituted
under the first impugned notification dated 6th march 2020 was to
B
expire on 5th March 2021. In view of the aforesaid letter, while
extending the term of the Chairman by one more year by the
second impugned notification dated 3rd March 2021, the said four
States were excluded. Thus, in effect, the term of the Delimitation
Commission constituted under the notification dated 6th March
2020 was extended by a period of one year only in relation to the C
Union territory of J & K. By the third impugned notification, the
period was further extended by a period of two months. Section
10A of the Delimitation Act, 2002 itself permits the postponement
of the exercise of delimitation in certain contingencies. Moreover,
the position and the status of the newly created Union Territory
D
of J&K under the Constitution is completely different from the
four North-Eastern States. In its applicability to the Union
Territory of J & K, Sections 4 and 9 of the Delimitation Act, 2002
stand amended by requiring readjustment to be carried out on
the basis of the census figures of 2011. In case of the North Eastern
States, there is no such amendment. Therefore, two unequal E
cannot be treated as equals. Hence, the argument based on the
violation of Constitutional provisions including Article 14
deserves to be rejected. [Para 37][546-D-H; 547-A-E]
4.2. There is a great deal of substance in the argument of
the learned Solicitor General that the challenge to the notification F
dated 6th March 2020 was belatedly made by filing the present
petition on 28th March 2022 and for the said delay, there is no
valid explanation. Moreover, the notification dated 6th March 2020
was substantially acted upon by completing the exercise of
delimitation as the draft Order was also published on 14th March
2022. [Para 39][548-B] G
4.3. In the writ petition, the first prayer is for challenging
the increase in number of seats from 107 to 114. The said
provision is made by sub-Section (1) of Section 60. Without
H
516 SUPREME COURT REPORTS [2023] 5 S.C.R.
A challenging the legality of any of the provisions of the J&K
Reorganisation Act, it is contended that the Act of increasing the
number of seats is violative of Articles 81, 82, 170, 330 and 332
of the Constitution of India. Article 81 deals with the composition
of the House of the People; Article 82 deals with the readjustment
and allocation of seats of the House of Parliament after the census
B
and Article 170 deals with legislatures of the States. None of these
provisions deal with the Legislature of any Union territory. Article
330 deals with the reservation of seats for Scheduled Castes and
Scheduled Tribes in the House of the People. Article 332 deals
with the reservation of seats for Scheduled Castes and Scheduled
C Tribes in the Legislative Assemblies of the States. Both these
provisions do not deal with reservation of seats for the House of
legislature of Union Territories. In any case, even assuming that
Article 332 can be applied to the reservation of seats for Scheduled
Castes and Scheduled Tribes in the Legislatures of Union
territories, it is not shown how the act of increasing the total
D
number of seats in the legislature will offend Article 332, so long
as the reservation is maintained as per the formula provided under
Article 332. [Para 40][548-C-F]
4.4. Another argument sought to be made is that the
provision made for 114 seats in the legislature of the newly
E constituted Union Territory of J & K is illegal. This submission
calls for no consideration as there is no challenge to the validity
of sub-section (1) of Section 60 of the J&K Reorganisation Act.
[Para 41][548-G]
4.5. Another argument was canvassed that the Delimitation
F Order of 2008 published by the Election Commission cannot be
deviated from. The perusal of the said Order shows that it
reproduces the delimitation of the Parliamentary and Legislative
Assembly Constituencies made by the Delimitation of
Parliamentary and Assembly Constituencies Orders of 1976 and
G 1995 for the State of Jammu and Kashmir. Both the orders of
1976 and 1995 have been expressly modified by the J&K
Reorganisation Act by virtue of Sections 11(4) and 14(5) as
provided in the second and third Schedules thereto. Hence, the
argument deserves to be rejected. [Para 42][548-H; 549-A-B]
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 517
ORS.
4.6. The petitioners have overlooked the fact that clause A
(b) of sub-Section (1) of Section 62 of the J&K Reorganisation
Act has further 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
B
year 2001 in sub-section (1) of Section 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 C
2011. The effect of Section 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
D
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 Section 63, further readjustment can be carried out only
after the publication of figures from the census held after the
year 2026. [Para 43][549-C-E]
4.7. Reliance placed on the opinion of the Attorney General E
is misplaced as it deals only with the provisions of the A.P.
Reorganisation Act, 2014. The petitioners cannot rely upon the
answer given by Hon’ble Minister in the Lok Sabha as it deals
with delimitation of Constituencies in Telangana in the context
of Article 170. In any event, the said opinion as well as the answer F
given by the Hon’ble Minister have no bearing on the
interpretation of the J&K Reorganisation Act. [Para 44][549-F-
G]
4.8. A vague attempt was made by the petitioners to submit
that the exercise which is undertaken for the newly created Union G
territory of J & K was not undertaken on the basis of the Uttar
Pradesh Reorganisation Act, 2000 and Andhra Pradesh
Reorganisation Act, 2014. In both the Acts, there is no provision
which is pari materia with clause (b) of sub-Section (1) of Section
62 of the J&K Reorganisation Act which amended the provisions
H
518 SUPREME COURT REPORTS [2023] 5 S.C.R.
A of the Delimitation Act 2002 in its applicability to the newly formed
Union Territories by substituting the year 2001 with 2011. [Para
45][549-G-H; 550-A]
4.9. There is absolutely no merit in any of the contentions
raised by the petitioners. The findings rendered in the judgment
B are on the footing that the exercise of power made in the year
2019 under clauses (1) and (3) of Article 370 of the Constitution
is valid. The issue of the validity of the exercise of the said powers
is the subject matter of petitions pending before this Court.
Therefore, this Court has not dealt with the issue of validity.
Nothing stated in this judgment shall be construed as giving
C imprimatur to the exercise of powers under clauses (1) and (3) of
Article 370 of the Constitution. [Para 46][550-B-C]
Engineering Kamgar Union v. Electro Steel Casting,
2004 (6) SCC 36; Mangal Singh & Anr. v. Union of
India, 1967 (2) SCR 109; Meghraj Kothari v.
D Delimitation Commission & Ors., 1967 (1) SCR 400 –
referred to.
Case Law Reference
2004 (6) SCC 36 referred to Para 9(g)
E 1967 (2) SCR 109 referred to Para 9 (r)
1967 (1) SCR 400 referred to Para 10(f)
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
237 of 2022.
F (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
Ravi Shankar Jandhyala, Sr. Adv., Sunny Kumar, Sriram P., Advs.
for the Petitioners.
Tushar Mehta, SG, K.M. Nataraj, ASG, Shailesh Madiyal, Kanu
Agrawal, Ms. Neela Kedar Gokhale, Saurav Roy, Nakul Chengappa K
G K, Ms. Akriti A Manubarwala, Parth Awasthi, Vaibhav Sabharwal,
Sudhanshu Prakash, Ms. Vinayaka S Pandit, Rajan Parmar, Akshay
Kumar, Arvind Kumar Sharma, Gurmeet Singh Makker, Ms. Taruna
Ardhendumauli Prasad, Amit Sharma, Dipesh Sinha, Ms. Pallavi Barua,
Advs. for the Respondents.
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 519
ORS.
The Judgment of the Court was delivered by A
ABHAY S. OKA, J.
1. The main challenge in this writ petition under Article 32 of the
constitution of India is to the legality and validity of the action of
constituting a Delimitation Commission for the Union Territory of Jammu
and Kashmir under provisions of the Delimitation Act, 2002 and the B
exercise of delimitation undertaken by the Commission.
RELEVANT FACTS
2. The Constitution (Application to Jammu and Kashmir) Order,
2019 bearing C.O. No.272 was issued by the Hon’ble President of India C
on 5th August 2019. The said order was issued in the exercise of powers
conferred by clause (1) of Article 370 of the Constitution of India. The
said order directed that all the provisions of the Constitution, as amended
from time to time, shall apply in relation to the State of Jammu and
Kashmir, subject to modifications made to Article 367 as set out in the
said order. By the said order, Clause (4) was added to Article 367 providing D
that the expression “Constituent Assembly of the State referred to in
clause (2)” in the proviso to clause (3) of Article 370 of the Constitution,
shall be read as “Legislative Assembly of the State”. On 6th August
2019, a declaration under Clause (3) of Article 370 of the Constitution
bearing C.O.No.273 was made by the Hon’ble President of India on the E
recommendation of the Parliament, by which it was declared that all the
clauses of Article 370 shall cease to be operative.
3. The Jammu and Kashmir Reorganisation Act, 2019 (for short,
‘the J&K Reorganisation Act’) was enacted which provided for the
reorganisation of the State of Jammu and Kashmir by dividing it into two F
Union Territories. A new Union Territory of Ladakh was created
comprising territories of Kargil and Leh Districts in the erstwhile State
of Jammu and Kashmir. The Union Territory of Jammu and Kashmir
(for short, ‘the Union Territory of J & K) was formed comprising the
existing State of Jammu and Kashmir other than Kargil and Leh Districts.
The J&K Reorganisation Act came into force with effect from 31st G
October 2019. By virtue of Section 13 thereof, Article 239A of the
Constitution of India which was earlier applicable only to the Union
Territory of Puducherry, became applicable to the Union Territory of J
& K. Article 239A confers a power on the Parliament to enact a law for
creating a legislature for the Union Territory.
H
520 SUPREME COURT REPORTS [2023] 5 S.C.R.
A 4. The Delimitation Act, 2002 which was not applicable to the
erstwhile State of Jammu and Kashmir, was made applicable by virtue
of Section 62 of the J&K Reorganisation Act to the newly formed Union
Territory of J&K. On 6 th March 2020, the Central Government
constituted a Delimitation Commission under Section 3 of the Delimitation
Act, 2002 for the purpose of delimitation of Assembly and Parliamentary
B
Constituencies in the Union Territory of J & K as well as the States of
Arunachal Pradesh, Assam, Manipur and Nagaland. The Commission
was headed by a retired Judge of this Court. The Election Commissioner
and the State Election Commissioner were made ex-officio members of
the Delimitation Commission. The term of appointment of the Chairperson
C was fixed as one year. By a notification dated 3rd March 2021, the earlier
notification dated 6th March 2020 appointing the Delimitation Commission
was amended by deleting the States of Arunachal Pradesh, Assam,
Manipur and Nagaland from the purview of the Delimitation Commission.
By the same notification, the term of the Chairperson was extended to
D two years. The notification dated 6th March 2020 was further amended
by a notification dated 21st February 2022 by providing that the term of
the Chairperson shall be for two years and two months.
5. Sub-Section (1) of Section 60 of the J&K Reorganisation Act
provides that the number of seats in the Legislative Assembly of Union
Territory of J & K shall be increased from 107 to 114. Sub-Section (4)
E
of Section 14 provides that 24 seats in the Legislative Assembly of the
Union territory of J & K shall remain vacant and shall not be taken into
account for reckoning the total membership of the Assembly.
PLEADINGS
F 6. Very wide and sweeping prayers have been made in the present
writ petition invoking Article 32 of the Constitution of India. The first
challenge is to the provision regarding the increase in the number of
seats in the Legislative Assembly of Union territory of J & K. The second
challenge is to the modification made of the notification dated 6th March
2020 by deleting the States of Arunachal Pradesh, Assam, Manipur and
G
Nagaland from the purview of the
Delimitation Commission. The third challenge is to the constitution
of the Delimitation Commission itself under the notification dated 6th
March 2020. The challenge is on the ground that after the Delimitation
of Parliamentary and Assembly Constituencies Order, 2008 (for short
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 521
ORS. [ABHAY S. OKA, J.]
“the Delimitation Order of 2008”) was issued by the Election Commission A
of India, the existing Delimitation Commission was wound up and
therefore, it was inappropriate and illegal to constitute a new Delimitation
Commission. The petitioners contended that the Delimitation Commission
has been appointed under the notification dated 6th March 2020 by usurping
the jurisdiction of the Election Commission of India (for short, ‘the Election
B
Commission) and therefore, the constitution of the Delimitation
Commission was ultra vires the provisions of sub-Sections (2) and (5)
of Section 60 of the J&K Reorganisation Act. There is also a challenge
to the constitution of the Delimitation Commission on the ground of
infringement of clause (3) of Article 170 as well as Articles 14, 19 and
21 of the Constitution. C
7. We may note here that on 13th May 2022, this Court recorded
a submission of Shri Ravi Shankar Jandhyala, the learned senior counsel
appearing for the petitioners that the petitioners are not seeking to assail
abrogation of Article 370 of the Constitution. In view of this statement,
this Court observed that certain allegations made on that behalf in the D
pleadings are to be ignored. This Court also noted that the challenge
really was to the exercise undertaken in respect of the delimitation
pursuant to the notification dated 6th March 2020 as amended by further
notifications dated 3rd March 2021 and 21st February 2022.
8. A counter affidavit has been filed by the Union of India pointing E
out that during the pendency of this writ petition, on 5th May 2022, a
notification has been published by the Delimitation Commission in the
exercise of powers under sub-Section (2) of Section 4 and sub-Section
(2) of Section 9 of the Delimitation Act, 2002 containing the order of the
delimitation of Assembly Constituencies of the Union territory of J & K
F
and Parliamentary Constituencies. It is also pointed out that by a further
order dated 20th May 2022, the Central Government exercised powers
under sub-Sections (2) and (3) of Section 62 of the J&K Reorganisation
Act appointing 20th May 2022 as the date on which order dated 5th May
2022 issued by the Delimitation Commission shall come into force. The
counter affidavit also notes that earlier, a draft order was published by G
the Delimitation Commission on 14th March 2022 containing proposals
for delimitation of the Constituencies, and objections and suggestions to
it were invited. Copies of the notifications/orders dated 5th May 2022
and 20 th May 2022 have been placed on record by the Election
Commission – Respondent no.5. There is a rejoinder filed by the
H
522 SUPREME COURT REPORTS [2023] 5 S.C.R.
A petitioners dealing with the counter affidavits filed by the Union of India
and the Election Commission.
SUBMISSIONS OF THE PETITIONERS
9. Shri Ravi Shankar Jandhyala, the learned senior counsel
appearing for the petitioners has made detailed submissions. The summary
B of his submissions is as under:
(a) That the 2nd proviso to clause (3) of Article 170 of the
Constitution lays down that until the figures for the first
census taken after the year 2026 have been published, it
shall not be necessary to readjust the total number of seats
C in the Legislative Assembly readjusted on the basis of the
1971 census and the division into territorial constituencies
as may be readjusted on the basis of 2001 census. The
exercise undertaken of delimitation/readjustment of the
Assembly and Parliamentary Constituencies of Union
D Territory of J & K by appointing the Delimitation
Commission under the impugned notification dated 6th March
2020 is completely in violation of 2nd proviso to clause (3)
of Article 170. Similarly, the 3rd proviso to Article 82 imposes
an embargo on the readjustment of allocation of seats in
the House of the People readjusted on the basis of the 1971
E census and the division of States into territorial constituencies
as may be readjusted on the basis of the 2001 census till
the figures of the first census conducted after 2026 are
available. A similar embargo has been imposed by Articles
330 and 332 of the Constitution on reserving the seats for
F Scheduled Castes and Scheduled Tribes till figures of the
first census conducted after 2026 are available;
(b) Earlier, the embargo was applicable till figures of the first
census taken after the year 2000 were available. It was
modified by the Constitution (84th Amendment Act, 2001)
G by substituting the year 2026 for the year 2000. The
Government cannot undermine the objects and reasons for
the said amendment;
(c) Till the figures of the first census conducted after the year
2026 become available, the number of members of the
Legislative Assembly of the States remains the same.
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 523
ORS. [ABHAY S. OKA, J.]
Therefore, the effort to divide the Union territory of J & K A
into territorial constituencies was illegal and uncalled for;
(d) Though the petitioners may not have challenged the validity
of Section 62 of the J&K Reorganisation Act, the same is
violative of clause (3) of Article 170 of the Constitution and
therefore, the provisions of Section 62 cannot be B
implemented. He submitted that the number of
Constituencies in Legislative Assemblies of the State can
be readjusted only in accordance with Article 170 and in
particular, the 2nd proviso to clause (3) thereof, and therefore,
any attempt to make any readjustment of the constituencies
of the Union Territory of J & K violates Article 170. The C
constitution of the Legislative Assembly of the Union
Territory of J & K must remain the same till the figures of
the first census conducted after the year 2026 are made
available;
(e) In view of Articles 82 and 83, constituencies of the House D
of the People for the Union territory of J & K cannot be
reconstituted without the publication of the results of the
first census conducted after the year 2026;
(f) The opinion rendered by the learned Attorney General for
India on 6th July 2016 concerning the implementation of E
Section 26 of the Andhra Pradesh Reorganisation Act, 2014
(for short, ‘the 2014 Act’) is very relevant. The learned
Attorney General for India opined that there was a conflict
between Section 26 of the 2014 Act and Article 170 of the
Constitution and therefore, Article 170 will prevail. It was F
submitted that the said opinion will govern the relevant
provisions of the J&K Reorganisation Act as well;
(g) A non-obstante clause in a statute cannot override the
provisions of the Constitution. Reliance was placed upon a
decision of this Court in the case of Engineering Kamgar
G
Union v. Electro Steel Casting1 on this behalf;
(h) The delimitation order of 2008 published by the Election
Commission cannot be deviated from. The guidelines issued
by the Election Commission are very relevant on this behalf;
1
2004 (6) SCC 36 H
524 SUPREME COURT REPORTS [2023] 5 S.C.R.
A (i) As under Section 62 of the J&K Reorganisation Act, the
work of delimitation has been entrusted to the Election
Commission, the notification dated 6th March 2020 which
permits Delimitation Commission to undertake the said
exercise, is completely illegal;
B (j) It is a settled law that this Court can take judicial notice of
the proceedings of the Houses of Parliament. A question
was asked in the Lok Sabha by a Hon’ble Member regarding
undertaking the delimitation of the constituencies in the State
of Telangana along with the Union territory of J & K. The
answer given by Shri Nityanand Rai, the Hon’ble Minister
C of State in the Ministry of Home Affairs on 3rd August 2021
to the question was that the total number of seats in the
Assembly of each State will be readjusted after the first
census is published after the year 2026;
(k) In any event, the appointment of the Delimitation
D Commission under the order dated 6 th March 2020 is
completely contrary to Section 3 of the Delimitation Act
which provides that the Delimitation Commission shall be
constituted at the earliest. Sub-Section (6) of Section 10 of
the Delimitation Act, 2002 requires the Delimitation
E Commission to complete the exercise and to publish orders
under sub-Section (1) of Section 10, not later than 31st July
2008. Hence, the orders passed by the Delimitation
Commission constituted under the notification dated 6th
March 2020 are in complete violation of the mandate of
sub-Section (6) of Section 10;
F
(l) The Delimitation Act, 2002 contemplates the constitution
of a single Delimitation Commission and not multiple
Commissions. He would, therefore, submit that the
constitution of the Delimitation Commission is completely
illegal;
G
(m) The States of Arunachal Pradesh, Assam, Manipur and
Nagaland were illegally excluded from the purview of the
notification dated 6th March 2020. The said action was taken
on the basis of the letter dated 22 nd February 2021
addressed by the Deputy Secretary of the Ministry of Home
H Affairs, stating that considering the litigations pending
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 525
ORS. [ABHAY S. OKA, J.]
concerning the delimitation exercise in North-Eastern States, A
the delimitation exercise should not be undertaken in the
said States. The earlier notification cannot be modified on
the basis of the views of a Deputy Secretary. The Union of
India and the Election Commission cannot apply different
yardsticks to different States. There was no reason to
B
exclude the other States included in the notification dated
6th March 2020;
(n) Sections 59 to 63 of the J&K Reorganisation Act are not
only violative of the express provisions of the Constitution
but also contradictory to each other. These Sections confer
the power of delimitation both on the Election Commission C
and the Delimitation Commission which makes these
Sections completely illegal. Sub-Section (1)(b) of Section
11 of the Delimitation Act, 2002 permits the Election
Commission to make any changes in the boundary, area, or
the extent of any constituency as described in the delimitation D
order already issued and published;
(o) The act of omission of the words “but does not include the
State of Jammu and Kashmir” from Section 2(f) of the
Delimitation Act, 2002 by sub-Section (1) of Section 62 of
the J&K Reorganisation Act infringes Article 14 of the E
Constitution of India;
(p) Consolidation of all the delimitation orders was already made
by the Election Commission in accordance with Section 9
of the Representation of the People Act, 1950;
(q) Articles 2 to 4 of the Constitution are subject to other F
provisions of the Constitution and the provisions of the said
Articles cannot override the Constitutional scheme; and
(r) Notwithstanding the orders dated 5th May 2020 and 20th
May 2022 passed in the exercise of powers under sub-
Section (1) of Section 10 of the Delimitation Act, 2002, the G
present writ petition is maintainable. The decision of the
Constitution Bench of this Court in the case of Meghraj
Kothari v. Delimitation Commission & Ors.2 will have
no application to the facts of the present case.
2
1967 (1) SCR 400 H
526 SUPREME COURT REPORTS [2023] 5 S.C.R.
A SUBMISSIONS OF THE UNION OF INDIA
10. Shri Tushar Mehta, the learned Solicitor General of India
appearing for the Union of India has made the following submissions:
(a) Writ petition suffers from delay and latches as the
Delimitation Commission was constituted by the impugned
B notification dated 6th March 2020. The notification was
amended on 3 rd March 2021 by deleting the States of
Arunachal Pradesh, Assam, Manipur and Nagaland.
Thereafter, on 14th March 2022, a draft delimitation order
was published by the Commission. As late as on 28th March
C 2022, the present petition has been filed. For challenging
the notification dated 6th March 2020, the present writ
petition has been filed after a lapse of more than two years;
(b) During the pendency of this petition, the delimitation order
under sub-Section (1) of Section 10 of the Delimitation Act,
2002 has been issued by the Delimitation Commission which
D
has been brought into force with effect from 20th March
2022;
(c) Under sub-Section (2) of Section 10 of the Delimitation
Act, 2002, there is a complete bar on any Court questioning
the order passed under sub-Section (1) of Section 10. In
E view of the decision of the Constitution Bench in the case
of Meghraj Kothari2, the bar under sub-Section (2) of
Section 10 is applicable also to a remedy under Article 226
of the Constitution. Article 329 also creates a bar on
interference by Courts in the matters of validity of any law
F relating to the delimitation of constituencies. An order of
delimitation of constituencies has been held to be a law and
therefore, now the orders dated 5th May 2020 and 20th May
2022 cannot be questioned;
(d) Sections 60 and 62 of the J&K Reorganisation Act operate
in different fields. Section 60 generally refers to the
G
delimitation of constituencies and Section 62 deals with the
delimitation of constituencies on the basis of census figures
of the 2011 census. He pointed out that sub-Section (1) of
Section 60 which confers power on the Election Commission
of delimitation uses the word “may” whereas Section 62
H uses the word “shall”;
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 527
ORS. [ABHAY S. OKA, J.]
(e) The Election Commission by a letter dated 2nd September A
2019 informed the Government of India that since the
Delimitation Commission is constituted under Section 62 of
the J&K Reorganisation Act which is carrying out
readjustment of Parliamentary and Legislative Assembly
constituencies, it was not necessary for the Election
B
Commission to undertake the exercise under Section 60 of
the Delimitation Act;
(f) Article 3 specifically empowers Parliament by law to form
a new State/Union Territory and the said law referred to in
Article 3 must provide for the appropriate amendments to
the First Schedule and Fourth Schedule for giving effect to C
the provisions of the law. Clause (2) of Article 4 specifically
provides that no such law shall be deemed to be an
amendment of the Constitution for the purpose of Article
368. Reliance was placed upon a decision of the Constitution
Bench in the case of Mangal Singh & Anr. v. Union of D
India3 on this behalf; and
(g) Clauses (3) of Articles 81 and Article 170 do not apply to
the Union territories at all.
REJOINDER
E
11. The learned senior counsel appearing for the petitioners by
way of rejoinder urged that though there may not be any specific challenge
in the present petition to the validity of the provisions of the J&K
Reorganisation Act, the said challenge can always be inferred. He
submitted that the issues of inconsistency between the Constitutional
provisions and the provisions of the J&K Reorganisation Act have not F
been answered by the learned Solicitor General of India.
CONSIDERATION OF SUBMISSIONS
Developments concerning the State of Jammu and Kashmir
in the year 2019
G
12. (a) On 5th August 2019, the Constitution (Application to
Jammu & Kashmir) Order, 2019 (for short ‘the 2019
Presidential Order’) was promulgated by the Hon’ble
3
1967 (2) SCR 109 H
528 SUPREME COURT REPORTS [2023] 5 S.C.R.
A President of India in the exercise of powers under clause
(1) of Article 370 of the Constitution of India. The said
order was issued in concurrence with the Government
of the State of Jammu and Kashmir. Clause (2) of the
2019 Presidential Order provided that all the provisions
of the Constitution of India, as amended from time to
B
time, shall apply in relation to the State of Jammu and
Kashmir subject to exceptions and modifications set out
in the said order. Clause (4) was added by the said
Order to Article 367 in relation to the State of Jammu
and Kashmir which provided that the expression
C “Constituent Assembly of the State referred to in clause
(2)” in the proviso to clause (3) of Article 370 of the
Constitution shall be read as “Legislative Assembly of
the State”. The 2019 Presidential order was brought
into force with immediate effect;
D (b) The second important development was the declaration
under Clause (3) of Article 370 of the Constitution (for
short ‘the said declaration’) made by the Hon’ble
President on the recommendation of the Parliament. It
was declared that from 6th August 2019, all clauses of
Article 370 shall cease to be operative, subject to the
E exceptions incorporated in the said declaration. It was
provided therein that notwithstanding anything contained
to the contrary in Articles 152 and 308 as well as any
other Article of the Constitution or any other provision
of the Constitution of Jammu and Kashmir or any law,
all the provisions of the Constitution of India as amended
F
from time to time shall apply to the State of Jammu and
Kashmir;
(c) Thus, in view of the 2019 Presidential Order and the
said declaration, with effect from 6th August 2019, all
the provisions of the Constitution of India became
G applicable to the State of Jammu and Kashmir except
the modifications provided in the 2019 Presidential Order.
As a result of the said declaration and the 2019
Presidential Order, the special status of the State of
Jammu and Kashmir under the Constitution by virtue
H of Article 370 virtually came to an end;
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 529
ORS. [ABHAY S. OKA, J.]
(d) Another important development that followed was the A
enactment of the J&K Reorganisation Act which
received the assent of the Hon’ble President on 9th
August 2019. 31 st October 2019 was fixed as the
appointed day under the J&K Reorganisation Act by
the Central Government. By virtue of Sections 3 and 4
B
thereof, with effect from 31st October 2019, a new Union
Territory came into existence known as the Union
Territory of Ladakh. The said Union Territory comprises
of the areas covered by Kargil and Leh districts. From
the appointed day, the Union Territory of J & K was
also created. The said Union Territory comprises of C
the territories of the erstwhile State of Jammu and
Kashmir except the area covered by the Union Territory
of Ladakh. Thus, with effect from 31st October 2019,
the State of Jammu and Kashmir ceased to exist and
the Union Territories of Ladakh, as well as Jammu &
D
Kashmir, were brought into existence;
(e) The Delimitation Act, 2002 became applicable to the
Union territory of J & K as the definition of “State” in
clause (f) of Section 2 thereof includes the Union
Territories having a Legislative Assembly. In addition,
many other Central enactments incorporated in Table- E
1 of the Fifth Schedule to the J&K Reorganisation Act
became applicable to the Union territory of J & K;
(f) The Representation of the People Act, 1951 (for short
‘the RP Act of 1951’) was not applicable to the elections
to fill in the seats in either House of Parliament in the F
State of Jammu and Kashmir and the House of
Legislature of the said State. An amendment was carried
out to the RP Act of 1951 by the J&K Reorganisation
Act by which the provisions of the RP Act of 1951
were made applicable to both the newly created Union G
Territories. Prior to that, The Jammu and Kashmir
Representation of the People Act, 1957 (for short “J&K
R.P Act”) was applicable to the State. We may note
here that as the Representation of the People Act, 1950
(for short ‘the RP Act of 1950’), was applicable to the
H
530 SUPREME COURT REPORTS [2023] 5 S.C.R.
A State of Jammu and Kashmir, the same continues to
apply to the two newly created Union Territories;
(g) By virtue of Section 13 of the J&K Reorganisation Act,
the provisions contained in Article 239A which were
earlier applicable only to the Union Territory of
B Puducherry were made applicable to the Union Territory
of J and K. Article 239A, inter alia, provides that
Parliament may by law create a body to function as a
legislature of the Union Territory of Puducherry.
The issue of the validity of provisions of the J&K
C Reorganisation Act.
13. We may note here that during the course of the hearing of
submissions of the learned senior counsel appearing for the petitioners,
he attempted to assail the validity of certain provisions of the J&K
Reorganisation Act. Therefore, we pointed out to him that there is no
D challenge incorporated in the present writ petition to the constitutional
validity of any of the provisions of the J&K Reorganisation Act. The
initial response of the senior counsel was that he does not wish to
challenge the provisions. However, subsequently, he submitted that the
challenge to the relevant provisions of the J&K Reorganisation Act is
implicit in this writ petition.
E
14. There cannot be any doubt that 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.
In absence of the specific pleadings to that effect, Court cannot go into
the issue of the validity of statutory provisions. The Constitutional Courts
F 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. For that purpose, the challenge has to be
specifically pleaded by setting out the specific grounds on which the
G
challenge is made. 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. The State
gets a proper opportunity to defend the legislation only if the State is
made aware of the grounds on which the legislation is sought to be
H challenged.
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 531
ORS. [ABHAY S. OKA, J.]
15. Though an opportunity was available to the petitioners to A
challenge the provisions of the J&K Reorganisation Act, the petitioners
have chosen not to do so. We may also note here that the petitioners are
also not questioning the 2019 Presidential Order and the said declaration.
Therefore, we will have to proceed on the footing that the 2019 Presidential
Order, the said declaration and the provisions of the J&K Reorganisation
B
Act are valid. It is in this context that the submissions made across the
Bar will have to be appreciated.
Findings on the challenges in the Writ Petition
16. The Constitution makes a clear distinction between the States
and Union Territories as can be seen from Article 1 and the First Schedule. C
Part V of the Constitution deals with the Union. Chapter II of Part V
deals with Parliament. Part VI deals with the States. Chapter III of Part
VI deals with the State Legislature. Part VIII of the Constitution
independently deals with the Union Territories.
17. Article 3 provides that Parliament may by law form new States D
and alter the areas, boundaries or names of the existing States. The
explanation I provides that in clauses (a) to (e) of Article 3, a “State”
includes “Union Territory”. Thus, Explanation I makes it amply clear
that the power of Parliament under Clause (a) of Article 3, to make a
law to form a new State or to alter a boundary of a State includes a
power to make a law to form a new Union Territory. Explanation II E
clarifies that the power conferred by clause (a) on Parliament to enact
the law to form a new State includes a power to form a Union Territory
by uniting parts of any State or Union Territory to any other State or
Union Territory. Clause (1) of Article 4 provides that any law made by
Parliament as provided in Article 3 shall contain such provisions for the F
amendment of the First Schedule (containing the list of States and Union
Territories) and Fourth Schedule (containing allocation of seats in the
Council of States) as may be necessary for the purposes of giving effect
to the provisions of the law. Such a law may also contain such
supplemental, incidental and consequential provisions including provisions
as to representation in Parliament and in the Legislature or Legislatures G
of the State or States affected by such law as Parliament may deem
necessary. Clause (2) of Article 4 clarifies that no such law made by
Article 3 shall be deemed to be an amendment of the Constitution for
the purposes of Article 368. By the same law, a provision can be made
as to the representation in Parliament and in the legislature of the Union H
532 SUPREME COURT REPORTS [2023] 5 S.C.R.
A Territory created by such law. The Constitution Bench in the case of
Mangal Singh3 has held that the power under Article 4 is wide enough
even to reduce the total members of the Legislative Assembly below the
minimum prescribed by clause (1) of Article 170.
18. Firstly, we will deal with the issue of applicability of Article
B 170 having the title “Composition of the Legislative Assemblies” to the
Union Territory of J & K. Article 170 forms part of Chapter III under
the title “The State Legislature”. Chapter III has been incorporated in
Part VI of the Constitution which deals with the States. Much emphasis
was laid on the violation of the provisions contained in the second Proviso
to Clause (3) of Article 170 by the learned counsel appearing for the
C petitioners. But we may note here that the said Article does not deal
with the legislatures of Union Territory at all. Articles 239A and 239AA
which are included in Part VIII of the Constitution are the Articles that
deal with the creation of a body to function as legislature and Council of
Ministers for certain Union Territories. For the sake of convenience, we
D are reproducing Article 239A which reads thus:
“239A. Creation of local Legislatures or Council of
Ministers or both for certain Union territories— (1)
Parliament may by law create [for the Union territory of
[Puducherry] —
E (a) a body, whether elected or partly nominated and partly
elected, to function as a Legislature for the Union
territory, or
(b) a Council of Ministers, or both with such constitution, powers
and functions, in each case, as may be specified in the law.
F
(2) Any such law as is referred to in clause (1) shall not be deemed
to be an amendment of this Constitution for the purposes of article
368 notwithstanding that it contains any provision which amends
or has the effect of amending this Constitution.”
(emphasis added)
G
Article 239A as it originally stood provided that Parliament may
by law create for the Union Territory of Puducherry a body to function
as a Legislature for the Union Territory or a Council of Ministers or
both. Such a body to act as a Legislature of the Union Territory covered
by Article 239A may be elected or partly nominated and partly elected.
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 533
ORS. [ABHAY S. OKA, J.]
By virtue of Section 13 of the J&K Reorganisation Act, with effect A
from 31st October 2019, Article 239A became applicable to the Union
Territory of J and K. As noted by clause (2) of Article 239A, the law
contemplated by clause (1) of Article 239A shall not be deemed to be an
amendment to the Constitution for the purposes of Article 368
notwithstanding that it contains any provision which amends or has the
B
effect of amending the Constitution.
19. On a conjoint reading of Articles 3,4 and 239A, we find that:-
a) Parliament by making a law can convert an existing State
into one or more Union territories;
b) Parliament is empowered by law to create a body of C
legislature for the Union territories of Puducherry and J&K.
Accordingly, sub-Section (2) of Section 14 of the J & K
Reorganisation Act provides that there shall be a Legislative
Assembly for the Union Territory of J & K.; and
c) Even if the law made by Parliament creating a body of D
legislature for Union territories of Puducherry and J&K
has the effect of amending certain parts of the Constitution,
it shall not be deemed to be an amendment of the
Constitution for the purposes of Article 368.
20. Now coming to the J&K Reorganisation Act, it is apparent E
that the said law has been made by Parliament in the exercise of powers
under Articles 3,4 and 239A. The said law created two Union territories
in place of the State of Jammu and Kashmir. The said law provides for
the amendment of the First and Fourth schedule for giving effect to its
provisions. Section 13 provides for amendment of Article 239A for F
applying the same to the Union territory of J & K. Section 13 is a
supplemental and consequential provision made by Parliament as provided
in clause (1) of Article 4 for the purposes of giving effect to the creation
of the new Union territory of J and K. In view of clause (2) of Article 4,
though Section 13 has the effect of amending Article 239A, it will not be
affected by Article 368 of the Constitution. G
21. Under sub-section (2) of Section 14 of the J&K Reorganisation
Act, a Legislative Assembly for the Union territory of J and K has been
created. Sub-section (3) provides that the total number of seats in the
Legislative Assembly of the Union territory of J & K to be filled by the
persons chosen by direct election shall be 107. Clause (a) of sub-section H
534 SUPREME COURT REPORTS [2023] 5 S.C.R.
A (4) of Section 14 provides that 24 seats in the Legislative Assembly of
the said Union territory shall remain vacant until the area of the Union
Territory under the occupation of Pakistan ceases to be so occupied.
We may note here that under the Constitution of Jammu and Kashmir,
the seats in the State Legislative Assembly excluding 24 seats earmarked
for Pakistan occupied territory were 87 out of which 7 seats were
B
reserved for Scheduled Castes and Schedule Tribes.
22. As far as the number of constituencies is concerned, we must
also refer to Part V of the J&K Reorganisation Act having the title
“Delimitation of Constituencies”. Sub-section (1) of Section 60 provides
that the number of seats in the Legislative Assembly of the Union territory
C
of J & K shall be increased from 107 to 114. However, the excluded 24
seats covered by Pakistan occupied territory remain the same. Thus,
the total number of seats available now for holding elections to the
Legislative Assembly of the Union territory of J & K is 90.
23. Hence, as far as the Legislative Assembly of the Union territory
D
of J & K is concerned, Article 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
E Article 239A and not by the provisions of Chapter III of Part VI. As
Article 170 is not applicable to the Legislature of the Union Territory of
J & K, the main thrust of the argument that certain provisions of the
J&K Reorganisation Act and actions taken thereunder are in conflict
with Article 170 and in particular Clause (3) thereof is clearly
misconceived and deserves to be rejected.
F
The exercise of Delimitation
24. Now, we come to the issue of delimitation of constituencies of
the Legislative Assembly of the Union territory of J and K. There were
two earlier enactments dealing with the establishment of the Delimitation
G Commission. The first one was the Delimitation Commission Act, 1962
and the second one was the Delimitation Act, 1972. Both the Acts were
not applicable to the State of Jammu and Kashmir as the definition of
the State incorporated in both Acts specifically excluded the State of
Jammu and Kashmir. The same is the case with the Delimitation Act,
2002. We may note here that Section 3 of the J&K RP Act laid down
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 535
ORS. [ABHAY S. OKA, J.]
the requirement of the establishment of the Delimitation Commission A
which provided that the Delimitation Commission shall distribute the seats
in the Legislative Assembly to single member territorial constituencies
and delimit them having regard to various factors mentioned in sub-
section (2) of Section 3. Section 4-B of the J&K RP Act provided for
the Delimitation Commission to pass an order regarding the delimitation
B
of constituencies and publish the same. In fact, the Delimitation of
Assembly Constituencies Order, 1995 was issued which was applicable
to the State of Jammu and Kashmir. Section 4-C of the J&K RP Act
conferred power on the Election Commission to correct any printing
mistakes in the final order of the Delimitation Commission or any error
or omission. The Election Commission was also empowered to make C
amendments when the boundaries or names of any district or any
territorial division mentioned in the final order of the Delimitation
Commission were altered.
25. By virtue of sub-section (5) of Section 14 of the J&K
Reorganisation Act, the said Delimitation Order of 1995 was amended D
as provided in the Third Schedule thereof. The Third Schedule contains
the details of the amendments to the delimitation of the assembly
constituencies made by the said Delimitation Order of 1995 in relation to
the existing 83 assembly constituencies out of a total 107 as provided in
sub-section (3) of Section 14. 24 constituencies covered by the Pakistan
occupied area were obviously not covered by the Delimitation Order. E
Thus, by virtue of sub-section (5) of Section 14, the delimitation of 83
constituencies of the Legislative Assembly of the Union Territory of J &
K was incorporated in the form of the Third Schedule which sets out the
boundaries of and the areas incorporated in the new individual 83
constituencies. F
26. Now we come to Part V of the of J&K Reorganisation Act
which deals with the Delimitation of Constituencies. By virtue of clause
(a) of sub-section (1) of Section 62, the provisions of the Delimitation
Act, 2002 were made applicable to the Union Territory of J & K with
effect from 31st October 2019. For the sake of convenience, we are G
reproducing Sections 60 to 63 of the J&K Reorganisation Act which
read thus:
60. (1) Without prejudice to sub-sections (3) of section 14
of this Act, the number of seats in the Legislative Assembly
of Union territory of Jammu & Kashmir shall be increased H
536 SUPREME COURT REPORTS [2023] 5 S.C.R.
A from 107 to 114, and delimitation of the constituencies may
be determined by the Election Commission in the manner
hereinafter provided—
(a) the number of seats to be reserved for the Scheduled
Castes and the Scheduled Tribes in the Legislative
B Assembly, having regard to the relevant provisions of the
Constitution;
(b) the assembly constituencies into which the Union
territory shall be divided, the extent of each of such
constituencies and in which of them seats shall be reserved
C for the Scheduled Castes or for the Scheduled Tribes; and
(c) the adjustments in the boundaries and description of
the extent of the parliamentary constituencies in each Union
territory that may be necessary or expedient.
(2) In determining the matters referred to in clauses (b) and (c) of
D sub-section (1), the Election Commission shall have regard to the
following provisions, namely:—
(a) all the constituencies shall be single-member constituencies;
(b) all constituencies shall, as far as practicable, be geographically
compact areas, and in delimiting them, regard shall be had to
E
physical features, existing boundaries of administrative units,
facilities of communication and conveniences to the public; and
(c) constituencies in which seats are reserved for the Scheduled
Castes and the Scheduled Tribes shall, as far as practicable, be
located in areas where the proportion of their population to the
F
total population is the largest.
(3) The Election Commission shall, for the purpose of assisting it
in the performance of its functions under sub-section (1), associate
with itself as associate members, four persons as the Central
Government may by order specify, being persons who are the
G members of the Legislative Assembly of the Union territory of
Jammu & Kashmir or four members of the House of the People
representing the Union territory of Jammu and Kashmir:
Provided that none of the associate members shall have a right to
vote or to sign any decision of the Election Commission.
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 537
ORS. [ABHAY S. OKA, J.]
(4) If, owing to death or resignation, the office of an associate A
member falls vacant, it shall be filled as far as practicable, in
accordance with the provisions of sub-section (3).
(5) The Election Commission shall—
(a) publish its proposals for the delimitation of constituencies
B
together with the dissenting proposals, if any, of any associate
member who desires publication thereof in the Official Gazette
and in such other manner as the Commission may consider fit,
together with a notice inviting objections and suggestions in relation
to the proposals and specifying a date on or after which the
proposals will be further considered by it; C
(b) consider all objections and suggestions which may have been
received by it before the date so specified; and
(c) after considering all objections and suggestions which may
have been received by it before the date so specified, determine D
by one or more orders the delimitation of constituencies and cause
such order or orders to be published in the Official Gazette, and
there upon such publication, the order or orders shall have the full
force of law and shall not be called in question in any court.
(6) As soon as may be after such publication, every such order E
relating to assembly constituencies shall be laid before the
Legislative Assembly of the Union territory of Jammu and Kashmir.
61. (1) The Election Commission may by notification in the Official
Gazette,—
(a) correct any printing mistakes in any order made under section F
60 or any error arising therein from inadvertent slip or omission;
and
(b) where the boundaries or name of any territorial division
mentioned in any such order or orders is or are altered, make
such amendments as appear to it to be necessary or expedient for G
bringing such order up-to-date.
(2) Every notification under this section relating to an assembly
constituency shall be laid, as soon as may be after it is issued,
before the Legislative Assembly.
H
538 SUPREME COURT REPORTS [2023] 5 S.C.R.
A 62. (1) On and from the appointed day, notwithstanding the
publication of orders under sub-section (1) of section 10 of the
Delimitation Act, 2002 or anything contained in sub-section (2) or
sub-section (4) of the said section, the Delimitation Act, 2002
shall be deemed to have been amended as provided below:
B (a) in section 2(f), the words “but does not include the State
of Jammu and Kashmir” shall be omitted; and
(b) for the purpose of delimitation of Assembly and
Parliamentary Constituencies, the words and figure “census
held in the year 2001”, wherever occurring, shall be
C construed as words and figure “census held in the year
2011”.
(2) Readjustment of the constituencies as provided under
section 60 in the successor Union territory of Jammu &
Kashmir into Assembly Constituencies, shall be carried by
D the Delimitation Commission, to be constituted under the
Delimitation Act, 2002 as amended by this Act, and shall
take effect from such date as the Central Government may,
by order, published in the Official Gazette, specify.
(3) Readjustment of the constituencies as provided under
E section 11 in the successor Union territory of Jammu &
Kashmir into Parliamentary Constituencies, shall be carried
by the Delimitation Commission, to be constituted under
the Delimitation Act, 2002 as amended by this Act, and shall
take effect from such date as the Central Government may,
by order, published in the Official Gazette, specify.
F
63. Special provisions as to readjustment of Assembly and
Parliamentary Constituencies.— Notwithstanding anything
contained in sections 59 to 61, until the relevant figures for the
first census taken after the year 2026 have been published, it shall
not be necessary to readjust the division of successor Union
G territory of Jammu and Kashmir into Assembly and Parliamentary
Constituencies and any reference to the “latest census figures” in
this Part shall be construed as a reference to the 2011 census
figures.”
(emphasis added)
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 539
ORS. [ABHAY S. OKA, J.]
27. As noted earlier, the delimitation of 83 constituencies of the A
Union Territory was made under the J&K Reorganisation Act and was
incorporated in the Third Schedule as provided in sub-section (5) of
Section 14. By virtue of the mandate of sub-section (1) of Section 60,
the total number of seats in the Legislative Assembly of the Union Territory
was required to be increased from 107 to 114. Thus, by excluding 24
B
seats from Pakistan occupied areas, the mandate was to increase the
seats from 83 to 90. For giving effect to the increase in the number of
seats as aforesaid, the exercise of delimitation for dividing the Union
Territory into 90 constituencies and determining the number of seats to
be reserved for Scheduled Castes and Schedule Tribes was required to
be undertaken. Sub-section (1) of Section 60 provides that the said C
delimitation exercise may be undertaken by the Election Commission.
However, sub-section (2) of Section 62 provides that the readjustment
of the constituencies as provided under Section 60 in the successor Union
Territory of J & K into assembly constituencies shall be carried out by
the Delimitation Commission to be constituted under the Delimitation
D
Act, 2002 as amended by the J&K Reorganisation Act. Sub-section (1)
of Section 60, as noted earlier, 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 Section 62 is that if a Delimitation
Commission is constituted under the Delimitation Act 2002, the exercise E
provided by clauses (a) to (c) of sub-section (1) of Section 60 shall be
carried out by the Delimitation Commission. However, sub-section (2)
of Section 62 refers to the readjustment of the constituencies. But, the
purport of sub-section (2) of Section 62 is that the readjustment means
the creation of 90 constituencies in the newly set up Union territory.
F
Thus, the process of readjustment contemplated by sub-section (2) of
Section 62 is nothing but the exercise of delimitation under sub-section
(1) of Section 60.
28. If we see the provisions of the Delimitation Act 2002, it indicates
what is readjustment. Section 4 reads thus:-
G
“4. Duties of the Commission.—(1) The readjustment made,
on the basis of the census figures as ascertained at the census
held in the year 1971 by the Delimitation Commission constituted
under section 3 of the Delimitation Act, 1972 (76 of 1972), of the
allocation of seats in the House of the People to the several States
H
540 SUPREME COURT REPORTS [2023] 5 S.C.R.
A and the total number of seats in the Legislative Assembly of each
State shall be deemed to be the readjustment made by the
Commission for the purposes of this Act.
(2) Subject to the provisions of sub-section (1) and any other
law for the time being in force, the Commission shall
B readjust the division of each State into territorial
constituencies for the purpose of elections to the House of
the People and to the State Legislative Assembly on the
basis of the census figures as ascertained at the census
held in the year [2001]:
C Provided that where on such readjustment only one seat is
allocated in the House of the People to a State, the whole of that
State shall form one territorial constituency for the purpose of
elections to the House of the People from that State.”
(emphasis added)
D What is important to note is that by virtue of Clause (b) of sub-
section (1) of Section 62 of the J&K Reorganisation Act, the year 2001
stands substituted by the year 2011 in relation to the Legislative Assembly
of the Union Territory of J & K.
29. Under Section 9 of the Delimitation Act, 2002, a specific power
E has been conferred on the Delimitation Commission of conducting the
Delimitation exercise. Section 9 reads thus:
“9. Delimitation of constituencies.— (1) The Commission
shall, in the manner herein provided, then, distribute the
seats in the House of the People allocated to each State
F and the seats assigned to the Legislative Assembly of each
State as readjusted on the basis of 1971 census to single-
member territorial constituencies and delimit them on the
basis of the census figures as ascertained, at the census
held in the year [2001], having regard to the provisions of the
Constitution, the provisions of the Act specified in section 8 and
G
the following provisions, namely:—
(a) all constituencies shall, as far as practicable, be geographically
compact areas, and in delimiting them regard shall be had to
physical features, existing boundaries of administrative units,
facilities of communication and public convenience;
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 541
ORS. [ABHAY S. OKA, J.]
(b) every assembly constituency shall be so delimited as to fall A
wholly within one parliamentary constituency;
(c) constituencies in which seats are reserved for the Scheduled
Castes shall be distributed in different parts of the State and located,
as far as practicable, in those areas where the proportion of their
population to the total is comparatively large; and B
(d) constituencies in which seats are reserved for the Scheduled
Tribes shall, as far as practicable, be located in areas where the
proportion of their population to the total is the largest.
(2) The Commission shall—
C
(a) publish its proposals for the delimitation of constituencies,
together with the dissenting proposals, if any, of any associate
member who desires publication thereof, in the Gazette of India
and in the Official Gazettes of all the States concerned and also in
such other manner as it thinks fit;
D
(b) specify a date on or after which the proposals shall be further
considered by it;
(c) consider all objections and suggestions which may have been
received by it before the date so specified, and for the purpose of
such consideration, hold one or more public sittings at such place E
or places in each State as it thinks fit; and
(d) thereafter by one or more orders determine—
(i) the delimitation of parliamentary constituencies; and
(ii) the delimitation of assembly constituencies, of each State.”
F
(emphasis added)
As noted earlier, by virtue of clause (b) of sub-section (1) of
Section 62 of the J&K Reorganisation Act, the year 2001 appearing in
sub-section (1) of Section 9 of the Delimitation Act, 2002 will have to be
read as 2011. Therefore, the Delimitation Commission established under G
the Order dated 6th March 2020 had to undertake the exercise of
delimitation or readjustment on the basis of the census figures of 2011 as
the earlier exercise of delimitation of the constituencies of the erstwhile
State was not made on the basis of the census figures of 2011. For the
reasons stated above, there is nothing illegal about the exercise of
H
542 SUPREME COURT REPORTS [2023] 5 S.C.R.
A delimitation/readjustment of the constituencies undertaken by the
Delimitation Commission for the purposes of dividing the Union Territory
into 90 constituencies on the basis of the 2011 census figures.
30. Before we deal with the issue of the legality of the appointment
of the Delimitation Commission, we must deal with parliamentary
B constituencies in the newly created Union Territories of J&K and Ladakh.
In the First Schedule to the RP Act of 1950, a total of 6 seats were
allocated to the erstwhile State of Jammu and Kashmir with no reservation
for Scheduled Castes and Schedule Tribes. Section 10 of the J&K
Reorganisation Act provides that out of the 6 seats allocated to the
erstwhile State, 5 will be allocated to the Union Territory of J & K and
C one will be to the Union Territory of Ladakh. That is how Section 11
provides thereof that the Delimitation of Parliamentary Constituencies
Order, 1976 stands amended as provided in the Second Schedule of the
said Act. Thus, the delimitation of the five parliamentary constituencies
of the Union Territory of J & K and one constituency of the Union
D Territory of Ladakh was made by virtue of Section 11 as provided in the
Second Schedule.
31. We have already quoted Section 60 of the J&K Reorganisation
Act. Clause (c) of sub-section (1) thereof provides that considering the
increase in the number of seats of the Legislative Assembly, the
E adjustments in the boundaries and description of the extent of the
Parliamentary Constituencies in each Union Territory may be made by
the Election Commission. Sub-section (3) of Section 62 provides that
readjustment of the constituencies as provided in Section 11 in the
successor Union Territories into Parliamentary Constituencies shall be
carried out by the Delimitation Commission. The readjustment referred
F to in sub-section (3) of Section 62 is the adjustment of boundaries and
description of the extent of the Parliamentary Constituencies as provided
in sub-section (1) of Section 60. This became necessary as a result of
the requirement of readjustment/delimitation of 90 constituencies of the
Legislative Assembly. Therefore, there is no illegality associated with
G the delimitation/readjustment of Parliamentary constituencies of the Union
Territory of J & K undertaken by the Delimitation Commission.
The legality of the appointment of the Delimitation
Commission by the Notification of 6th March 2020
32. The impugned notification dated 6th March 2020 constituting
H the Delimitation Commission reads thus:
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 543
ORS. [ABHAY S. OKA, J.]
“MINISTRY OF LAW AND JUSTICE A
Legislative Department
NOTIFICATION
New Delhi, the 6th March, 2020
S.O. 1015 (E). – In exercise of the powers conferred by Section B
3 of the Delimitation Act, 2002 (33 of 2002), the Central
Government hereby constitutes the Delimitation Commission for
the purpose of delimitation of Assembly and Parliamentary
constituencies in the Union territory of Jammu & Kashmir and
the States of Assam, Arunachal Pradesh, Manipur and Nagaland, C
consisting of the following member, namely:-
(i) Justice (Retd.) Ranjana Prakash Desai - Chairperson
(ii) Shri Sushil Chandra,
Election Commissioner - Member, (ex officio) D
(iii) The State Election Commissioner of the concerned State of
Union Territory appointed under clause (1) of article 243K or
under clause (1) of article 243L of the Constitution, as the case
may be.
2. The appointment of Justice (Retd.) Ranjana Prakash Desai E
shall be for a period of one year from the date of the publication
of this notification in the Official Gazette or till further orders,
whichever is earlier.
3. The said Delimitation Commission shall delimit the
constituencies, - F
(i) of the Union territory of Jammu & Kashmir in
accordance with the provisions of Part V of the Jammu
& Kashmir Reorganisation Act, 2019 (34 of 2019) and
the provisions of the Delimitation Act, 2002 (33 of 2002).
G
(ii) of the States of Assam, Arunachal Pradesh, Manipur and
Nagaland in accordance with the provisions of the Delimitation
act, 2002 (33 of 2002).”
(emphasis added)
H
544 SUPREME COURT REPORTS [2023] 5 S.C.R.
A Hence, it is obvious that when the said notification requires the
Delimitation Commission to undertake the exercise of the delimitation of
Assembly and Parliamentary Constituencies in the Union Territory of J
& K, it refers to the exercise of readjustment as provided in sub-section
(2) and (3) of Section 62 which is nothing but delimitation exercise
contemplated by sub-section (1) of Section 60 due to the reason of the
B
increase in the membership of the Legislative Assembly from 83 to 90.
Moreover, the readjustment was necessary to be made on the basis of
the census figures of the 2011 census as contemplated by Section 4 and
sub-section (1) of Section 9 of the Delimitation Act, 2002 as amended
by clause (b) of sub-section (1) of Section 62 of the J&K Reorganisation
C Act.
33. One of the contentions raised by the petitioners is that the
Delimitation Act, 2002 contemplates the constitution of only one
Delimitation Commission and not more than one. As noted earlier, the
Delimitation Act, 2002 was made applicable for the first time to the
D State of Jammu and Kashmir with effect from 31st October 2019. Even
the Delimitation Acts of 1962 and 1972 were not applicable to the State
of Jammu and Kashmir. By virtue of the J&K Reorganisation Act, not
only provisions of the Delimitation Act, 2002 were made applicable to
the Union Territory of J & K, but a mandatory duty of readjustment of
the constituencies in the Union Territory both of the Legislative Assembly
E and Parliament was entrusted to the Delimitation Commission by sub-
Sections (2) and (3) of Section 62. Till 31st October 2019, the Delimitation
Commission for the State/Union Territory of J & K under the Delimitation
Act, 2002 could not have been established as the said enactment was
not made applicable to the State of Jammu and Kashmir till then.
F 34. Sub-section (6) of Section 10 of the Delimitation Act, 2002
reads thus:
“10. Publication of orders and their date of operation.—
xxx xxx xxx
G (6) The Commission shall endeavour to complete and publish each
of its orders referred to in sub-section (1) in the manner provided
in that sub-section, 2 [within a period not later than 31st day of
July, 2008] under section 3.”
Sub-section (6) uses the word “endeavour”. Section 10A of the
H Delimitation Act, 2002 itself indicates that the time limit of 31st July 2008
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 545
ORS. [ABHAY S. OKA, J.]
fixed under sub-Section (6) of Section 10 is not sacrosanct as it confers A
a power on the Hon’ble President to defer the delimitation exercise in a
State under certain circumstances. Thus, the time limit provided in sub-
section (6) of Section 10 was never intended to be mandatory. While
amending Section 2(f) of the Delimitation Act by the J&K Reorganisation
Act, sub-section (6) of Section 10 has not been amended for enlarging
B
the period provided thereunder. However, the intention of the legislature
as reflected in sub-sections (2) and (3) of Section 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 Section 62 on the
basis of the 2011 census figures has been entrusted to the Delimitation
Commission suggests that the legislature intended that the Delimitation C
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 Section 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
D
modify the time limit provided in sub-Section (6) of Section 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 Section 62 of the J&K Reorganisation Act will be rendered
nugatory. A statute cannot be interpreted in a manner that will render
some of its provisions otiose. A statute must be construed and interpreted E
in such a manner as to make it workable. Therefore, the argument based
on sub-Section (6) of Section 10 of the Delimitation Act 2002 will have
to be rejected.
35. Articles 2 and 3 of the Constitution enable the Parliament to
create new States and Union territories. Accordingly, the two new Union F
territories have been created. The J&K Reorganisation Act which created
the two new Union territories assigns the role of readjustment of
constituencies to the Delimitation Commission under the Delimitation
Act, 2002. Article 4 of the Constitution permits the Parliament to
incorporate such provisions in the law made in accordance with Article
3 for the formation of new States and Union territories, which may be G
necessary to give effect to the provisions of the law. Such a law may
also contain provisions as to representations in Parliament and in the
Legislature of the State or States affected by such law. Therefore, such
law which is made under Article 3 can always provide for readjustment
of the Constituencies in the newly constituted States or Union territories H
546 SUPREME COURT REPORTS [2023] 5 S.C.R.
A through the Delimitation Commission. Hence, we hold that there is no
illegality associated with the establishment of the Delimitation Commission
under the impugned Order dated 6th March 2020.
36. Under the notification dated 6th March 2020, the appointment
of the Chairperson of the Delimitation Commission who was a retired
B Judge of this Court was for a period of one year. By the notification
dated 3rd March 2021, the said period was extended up to two years. By
the third impugned notification dated 21st February 2022, the said period
of two years was extended to two years and two months. Once the
Delimitation Commission was established, there is nothing wrong if the
Central Government extended the period of appointment of the
C Chairperson till the task of delimitation/readjustment was completed.
The Delimitation Act, 2002 is silent about the term of the appointment of
the Chairperson.
Exclusion of the North-Eastern States from the purview of
the notification dated 6th March 2020
D
37. Another challenge which is seriously pressed is to that part of
the second impugned notification dated 31st March 2021 by which the
States of Arunachal Pradesh, Assam, Manipur and Nagaland were
excluded from the purview of the Delimitation Commission constituted
under the notification dated 6th March 2020. In the counter affidavit
E filed by the Union of India, reliance has been placed on the letter dated
22nd February 2021 issued by the Deputy Secretary (NE-III), Ministry
of Home Affairs, Government of India. In paragraphs 5 and 6 of the
counter affidavit, it is stated that the Delimitation Commission set up on
12th July 2002 under the Chairmanship of a retired Judge of this Court
F had completed the delimitation exercise in respect of the entire country
except for four North-Eastern States of Assam, Arunachal Pradesh,
Manipur and Nagaland. It is stated that delimitation of these four States
was deferred due to security reasons. Section 10A of the Delimitation
Act, 2002 permitted such a course to be adopted. Though these four
States were a part of the notification dated 6th March 2020, it is stated in
G the letter dated 22nd February 2021 that there were number of petitions
pending in this Court as well as in the Manipur High Court concerning
delimitation exercise in North-Eastern States and that in the Court cases,
discrepancies in census figures of 2001 in relation to these States were
pointed out. In fact, it is stated that a number of notices have been
H issued regarding the said discrepancies. Therefore, the said letter was
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 547
ORS. [ABHAY S. OKA, J.]
issued with the approval of the competent authority in which it was A
stated that it may not be conducive to grant an extension for the process
of delimitation in the four North-Eastern States. The term of the Chairman
of the Delimitation Commission constituted under the first impugned
notification dated 6th march 2020 was to expire on 5th March 2021. In
view of the aforesaid letter, while extending the term of the Chairman
B
by one more year by the second impugned notification dated 3 rd March
2021, the said four States were excluded. Thus, in effect, the term of the
Delimitation Commission constituted under the notification dated 6th
March 2020 was extended by a period of one year only in relation to the
Union territory of J & K. By the third impugned notification, the period
was further extended by a period of two months. Section 10A of the C
Delimitation Act, 2002 itself permits the postponement of the exercise
of delimitation in certain contingencies. Moreover, the position and the
status of the newly created Union Territory of J&K under the Constitution
is completely different from the four North-Eastern States. In its
applicability to the Union Territory of J & K, Sections 4 and 9 of the
D
Delimitation Act, 2002 stand amended by requiring readjustment to be
carried out on the basis of the census figures of 2011. In case of the
North Eastern States, there is no such amendment. Therefore, two
unequal cannot be treated as equals. Hence, the argument based on the
violation of Constitutional provisions including Article 14 deserves to be
rejected. E
38. The learned counsel appearing for the petitioners did not dispute
that the draft order of delimitation was issued on 14th March 2022. The
final order was issued on 5th May 2022 which was brought into force
with effect from 20 th May 2022. While accepting that he has not
challenged these subsequent orders, the learned counsel submitted that F
the petitioners cannot challenge the said order in view of sub-Section (2)
of Section 10 which lays down that every such order shall have the
force of law and shall not be called in question in any Court. In fact, the
learned Solicitor General by relying upon a decision of the Constitution
Bench in the case of Megharaj Kothari2 urged that the intention of the
legislature is that once an order passed by the Delimitation Commission G
is published in accordance with sub-Section (1) of Section 10, the same
are treated as law, which cannot be questioned in any Court. In paragraph
21 of the said decision, the Constitution Bench held that though orders
passed under Sections 8 and 9 of the Delimitation Act, 2002 in accordance
with sub-Section (1) of Section 10 are not part of an act of the Parliament H
548 SUPREME COURT REPORTS [2023] 5 S.C.R.
A but its effect would be the same. In any event, the order of the
Delimitation Commission has not been questioned in this petition.
39. We may note here that there is a great deal of substance in
the argument of the learned Solicitor General that the challenge to the
notification dated 6th March 2020 was belatedly made by filing the present
B petition on 28th March 2022 and for the said delay, there is no valid
explanation. Moreover, the notification dated 6th March 2020 was
substantially acted upon by completing the exercise of delimitation as
the draft Order was also published on 14th March 2022.
40. In the writ petition, the first prayer is for challenging the increase
C in number of seats from 107 to 114. The said provision is made by sub-
Section (1) of Section 60. Without challenging the legality of any of the
provisions of the J&K Reorganisation Act, it is contended that the Act
of increasing the number of seats is violative of Articles 81, 82, 170, 330
and 332 of the Constitution of India. Article 81 deals with the composition
of the House of the People; Article 82 deals with the readjustment and
D
allocation of seats of the House of Parliament after the census and
Article 170 deals with legislatures of the States. None of these provisions
deal with the Legislature of any Union territory. Article 330 deals with
the reservation of seats for Scheduled Castes and Scheduled Tribes in
the House of the People. Article 332 deals with the reservation of seats
E for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies
of the States. Both these provisions do not deal with reservation of seats
for the House of legislature of Union Territories. In any case, even
assuming that Article 332 can be applied to the reservation of seats for
Scheduled Castes and Scheduled Tribes in the Legislatures of Union
territories, it is not shown how the act of increasing the total number of
F
seats in the legislature will offend Article 332, so long as the reservation
is maintained as per the formula provided under Article 332.
41. Another argument sought to be made is that the provision
made for 114 seats in the legislature of the newly constituted Union
Territory of J & K is illegal. This submission calls for no consideration as
G
there is no challenge to the validity of sub-section (1) of Section 60 of
the J&K Reorganisation Act.
42. Another argument was canvassed that the Delimitation Order
of 2008 published by the Election Commission cannot be deviated from.
The perusal of the said Order shows that it reproduces the delimitation
H
HAJI ABDUL GANI KHAN & ANR. v. UNION OF INDIA & 549
ORS. [ABHAY S. OKA, J.]
of the Parliamentary and Legislative Assembly Constituencies made by A
the Delimitation of Parliamentary and Assembly Constituencies Orders
of 1976 and 1995 for the State of Jammu and Kashmir. Both the orders
of 1976 and 1995 have been expressly modified by the J&K
Reorganisation Act by virtue of Sections 11(4) and 14(5) as provided in
the second and third Schedules thereto. Hence, the argument deserves
B
to be rejected.
43. The petitioners have overlooked the fact that clause (b) of
sub-Section (1) of Section 62 of the J&K Reorganisation Act has further
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 C
Union territory of J & K, the year 2001 in sub-section (1) of Section 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 D
the basis of the figures of the census held in the year 2011. The effect of
Section 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 E
the basis of the figures of the 2011 census. In view of Section 63, further
readjustment can be carried out only after the publication of figures
from the census held after the year 2026.
44. Reliance placed on the opinion of the learned Attorney General
of India is misplaced as it deals only with the provisions of the A.P. F
Reorganisation Act, 2014. The petitioners cannot rely upon the answer
given by Hon’ble Minister in the Lok Sabha as it deals with delimitation
of Constituencies in Telangana in the context of Article 170. In any
event, the said opinion as well as the answer given by the Hon’ble Minister
have no bearing on the interpretation of the J&K Reorganisation Act. G
45. A vague attempt was made by the learned senior counsel
appearing for the petitioners to submit that the exercise which is
undertaken for the newly created Union territory of J & K was not
undertaken on the basis of the Uttar Pradesh Reorganisation Act, 2000
and Andhra Pradesh Reorganisation Act, 2014. In both the Acts, there is H
550 SUPREME COURT REPORTS [2023] 5 S.C.R.
A no provision which is pari materia with clause (b) of sub-Section (1) of
Section 62 of the J&K Reorganisation Act which amended the provisions
of the Delimitation Act 2002 in its applicability to the newly formed Union
Territories by substituting the year 2001 with 2011.
46. Thus, there is absolutely no merit in any of the contentions
B raised by the petitioners. We may, however, clarify that the findings
rendered in the judgment are on the footing that the exercise of power
made in the year 2019 under clauses (1) and (3) of Article 370 of the
Constitution is valid. We are aware that the issue of the validity of the
exercise of the said powers is the subject matter of petitions pending
before this Court. Therefore, we have not dealt with the issue of validity.
C Nothing stated in this judgment shall be construed as giving our imprimatur
to the exercise of powers under clauses (1) and (3) of Article 370 of the
Constitution.
47. Hence, writ petition is dismissed with no order as to costs.
D
Bibhuti Bhushan Bose Writ petition dismissed.
(Assisted by : Varun Dhond, LCRA)
E
F
G
H
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