The Supreme Court’s decision to dismiss the plea challenging the validity of delimitation of the electoral constituencies of Jammu and Kashmir(J&K) after the scrapping of Article 370 was not entirely unpredictable. But the grounds the top court has cited to set aside the petition by the two eminent Kashmiri petitioners are telling.
The bench of justices SK Kaul and AS Oka, has argued that the petitioners have not challenged the parent law—the J&K Reorganisation Act that mandated the setting up of the Delimitation Commission in the region, and that the court cannot “interfere with the law made by the Legislature unless it is specifically challenged by incorporating specific grounds of challenge in the pleadings.”
In other words, the court insists that the J&K Reorganisation Act which dismembered the J&K state and spelled out a new constitutional charter for the region, rightfully empowered the government to roll out measures such as resizing electoral constituencies. And because the petitioners hadn’t impugned the law itself but disputed the specifications stipulating delimitation, the courts were, in effect, restrained from going into the “validity of statutory provisions.”
"We may also note here that the petitioners are also not questioning the 2019 Presidential Order and the said declaration,” the court order reads. “Therefore, we will have to proceed on the footing that the 2019 Presidential Order (which forms the basis of repealing Article 370), the said declaration and the provisions of the J&K Reorganisation Act are valid.”
On the face of it, this sounds very logical. But that is until we get to wrap our minds around the background story.
Back to Basics
The Delimitation Commission was convened in March 2020 to redraw electoral constituencies in J&K. It increased the region’s seat share from 83 to 90. Six of those seats went to Jammu, and only one was awarded to Kashmir.
Around 28 assembly seats were renamed and 19 dissolved by either splitting them between other seats or absorbing them wholly into different constituencies.
The exercise triggered a political pandemonium in the region with the politicians alleging that the constituencies they had been nurturing with their political munificence since ages, were suddenly gone. Others voiced concerns over gerrymandering as more seats were assigned to the numerically poorer Jammu region than Kashmir.
It was on account of these apprehensions that Mohammad Ayoub Mattoo, a former Congress politician and his friend Haji Abdul Ghani Khan, filed a plea in the Supreme Court in March last year challenging the exercise.
“It was an act of injustice,” Mattoo told The Quint. “I had met the Commission in my capacity as a Congress representative. We were quite happy with the delimitation first, because we felt that many people were upset that their constituencies were very far from the centres of power. So we thought the Commission would rectify this.”
But to his shock when the Commission announced their working draft in February last year, Mattoo found that Kulgam—the very district that he headed on behalf of the Congress party, was made part of the Anantnag Parliamentary constituency and clubbed with areas of Rajouri and Poonch falling on the other side of Pir Panjal mountain range. “Does it sound fair and just that the two areas separated by mountains are made part of one same constituency?”
Mattoo described SC’s decision as unfair. “But what can we do?” he lamented. “There is no higher judiciary than the Supreme Court.”
The Argument of the Petitioners
The points challenging delimitation in the petition are quite forthright. The petition claims that despite a moratorium being placed on the exercise by a democratically elected government in J&K in 2001—mirroring a similar nationwide ban on delimitation until the census figures of the year 2026 were out, the Commission was still constituted and the government went ahead with its proposals.
It also asserts that in March 2021, the states of Arunachal Pradesh, Assam, Manipur, and Nagaland which were previously under the Commission's purview, were suddenly severed and dropped from its mandate, leaving J&K as the only region under its domain.
The petitioners specifically cite a February 2021 letter by the Deputy Secretary of the Ministry of Home Affairs stating that the Northeastern states were scrubbed from the Commission’s mandate in view of the fact the exercise to delimit the constituencies, was mired in various litigations. The petition questions how the Indian government can use different yardsticks for different states.
Indian Government's Response
To these objections, India’s Solicitor General Tushar Mehta has offered quite an interesting response. He said that the final delimitation order announced in March 2022 was issued under sub section (1) of section 10 of Delimitation Act and that the orders passed under the aegis of this clause effectively prohibited the court from questioning them.
Mehta also argued that Articles 81 and 170 that demanded adherence to a constitutionally mandated moratorium did not apply to the Union Territories which is what J&K now was.
The Disappointment Over Apex Court's Decision
In its observation, the court also hinged its decision to the fact that Section 13 of the J&K Reorganisation Act had become vector for powerful statutes like Article 293A and made the erstwhile state subject to sweeping powers wielded by the Centre including the right to create bodies to function as legislature of the UTs.
And since the petitioners have not challenged the J&K Reorganisation Act as a corollary then, it is these unmitigated executive powers that are going to prevail. This logic gives rise to another conundrum. There are already petitions challenging the 2019 Presidential Order as well as J&K Reorganisation Act. But the Supreme Court is not hearing them.
“It is one more addition to our disappointment,” said Mohammad Yousuf Tarigami, senior CPI (M) leader in J&K who has challenged the revocation of Article 370 in the SC. “Our petitions are pending before the Hon’ble Court and our esteemed justices know it very well.”
Tarigami questioned why the hearing of the petitions was being delayed. “First, there was the issue of their being heard in the larger bench. When that was resolved, the chief justice said it would be taken up after Dussehra. After this, we were told the hearing will happen after vacations. It has now become a matter of concern. I had even filed another request for an expedited hearing. But still, nothing happened.”
(Shakir Mir is an independent journalist. He has also written for The Wire.in, Article 14, Caravan, Firstpost, The Times of India, and more. He tweets at @shakirmir. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)