The Supreme Court has recently held that on a conjoint reading of Articles 3, 4 and 239A of the Constitution of India, it has found that Parliament, by making a law, can convert an existing state into one or more Union Territories.
Referring to the J&K Reorganisation Act, the Supreme Court noted that it is apparent that the said law has been made by Parliament in the exercise of powers under Articles 3,4 and 239A, and said, “Parliament is empowered by law to create a body of 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…”
A bench of Justices SK Kaul and AS Oka added that 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 be deemed to be an amendment of the Constitution for the purposes of Article 368.
The observations were made by the top court while dismissing a petition challenging the delimitation exercise carried out for redrawing the Legislative Assembly and Lok Sabha constituencies in the Union Territory of Jammu & Kashmir.
In this regard, the Supreme Court noted that Section 3 of the Jammu and Kashmir Representation of the People Act, 1957, 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.
In March 2022, a plea was filed before the Supreme Court seeking a direction in the nature of Writ of Mandamus declaring the increase in the number of seats from 83 to 90 i.e., (107 to 114 including 24 seats in Pakistan Occupied Kashmir) in Union Territory of Jammu & Kashmir by the central government, is ultra vires the Articles 81, 82, 170, 330 and 332 and Section 63 of the Jammu & Kashmir Re-organisation Act, 2019.
While Article 170 of the Constitution of India provides that the next delimitation in the country will be taken up after 2026, why has the UT of Jammu and Kashmir been singled out? the plea questioned.
It further sought a declaration that the notification on constituting the Delimitation Commission to take up delimitation in the UT of J&K is unconstitutional as it amounts to classification and violates Article 14.
It was the case of the petitioners that since the last Delimitation Commission was set up on July 12, 2002, as per section 3 of the Delimitation Act, 2002, after the 2001 Census to carry out the exercise throughout the country, the Commission had clearly stated that the total number of existing seats in the Legislative Assemblies of all states, including UTs of the National Capital Region and Pondicherry, as fixed based on the 1971 census shall remain unaltered till the first census to be taken after the year 2026.
Furthermore, the plea argued that since the notification originally included the names of Assam, Arunachal Pradesh, Manipur and Nagaland, their subsequent omission from the process of delimitation and conducting delimitation only for the Union Territory of Jammu & Kashmir is unconstitutional as it amounts to classification as held in Subramanian Swamy case.
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