2023 LiveLaw (SC) 98

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
SANJAY KISHAN KAUL; J., ABHAY S. OKA; J.
WRIT PETITION (CIVIL) NO.237 OF 2022; February 13, 2023
Haji Abdul Gani Khan & Anr. versus Union of India & Ors.
Jammu and Kashmir Delimitation - There is no illegality associated with the
delimitation/readjustment of Parliamentary constituencies of the Union
Territory of J & K undertaken by the Delimitation Commission - there is no
illegality associated with the establishment of the Delimitation Commission
under the impugned Order dated 6th March 2020 - There is nothing wrong if the
Central Government extended the period of appointment of the Chairperson till
the task of delimitation/readjustment was completed - 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 - 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. (Para 31 - 46)
Constitution of India, 1950; Article 170 - Article 170 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 VI. (Para 23)
Practice and Procedure - 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 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 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 challenged. (Para 14)
For Petitioner(s) Sriram P., AOR
For Respondent(s) Ms. Taruna Ardhendumauli Prasad, AOR Mr. Arvind Kumar Sharma, AOR Mr.
K.M. Nataraj, ASG Mr. Sharath N. Nambiar, Adv. Mr. Vatsal Joshi, Adv. Mr. Haji Abdul G. Khan, Adv.
Mr. Vinayak S. Sharma, Adv. Ms. Indira Bhaskar, Adv. Mr. Chitransh Sharma, Adv. Mr. A. Udupa,
Adv. Mr. Nakul C., Adv. Mr. Gurmeet Singh Makker, AOR Mr. Amit Sharma, AOR Mr. Dipesh Sinha,
AOR Ms. Aparna Singh, Adv. Ms. Sakshi Upadhayaya, Adv. Mr. Shailesh Madiyal, AOR Mr. Vaibhav
Sabharwal, Adv. Mr. Parth Awasthi, Adv. Mr. Vinayaka Pandit, Adv. Mr. Rajan Parmar, Adv. Mr.
Akshay Kumar, Adv. Ms. Rakhi, Adv.

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 JUDGMENT
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 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 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 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
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 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 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.
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 6th 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
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 was fixed as one year. By a notification dated 3 rd
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 two years. The notification

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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) 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
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 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 “the Delimitation
Order of 2008”) was issued by the Election Commission 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 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.
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 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 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 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
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

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notifications/orders dated 5th May 2022 and 20th May 2022 have been placed on record
by the Election Commission – Respondent no.5. There is a rejoinder filed by the
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 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 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 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 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
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) 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. Therefore, the effort to divide the Union territory of J & K 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 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 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 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 Section 26 of the Andhra Pradesh Reorganisation

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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 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 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;
(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;
(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 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 Commission under the order
dated 6th 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
Commission to complete the exercise and to publish orders under subSection (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;
(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;
(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 22nd February 2021 addressed by the Deputy
Secretary of the Ministry of Home Affairs, stating that considering the litigations
pending concerning the delimitation exercise in North-Eastern States, 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 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

1
2004 (6) SCC 36

5
Sections confer the power of delimitation both on the Election Commission 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 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 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 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 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.
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 notification dated 6th March 2020. The notification was
amended on 3rd 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 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 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 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 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 delimitation of constituencies and Section 62 deals
with the delimitation of constituencies on the basis of census figures of the 2011

2
1967 (1) SCR 400

6
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 uses
the word “shall”;
(e) The Election Commission by a letter dated 2nd September 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 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 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 India3 on this behalf; and
(g) Clauses (3) of Articles 81 and Article 170 do not apply to the Union territories at
all.
REJOINDER
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
been answered by the learned Solicitor General of India.
CONSIDERATION OF SUBMISSIONS
Developments concerning the State of Jammu and Kashmir in the year 2019
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
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
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 “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;
(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

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1967 (2) SCR 109

7
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
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 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
of Article 370 virtually came to an end;
(d) Another important development that followed was the enactment of the J&K
Reorganisation Act which received the assent of the Hon’ble President on 9th August
2019. 31st 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 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 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 & 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-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
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 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 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 Puducherry
were made applicable to the Union Territory of J and K. Article 239 A, 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 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

8
that there is no 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.
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 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 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 challenged.
15. Though an opportunity was available to the petitioners to 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 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. 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 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 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 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 of
the State or States affected by such law as Parliament may deem necessary. Clause

9
(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 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 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 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 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] --
(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.
(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)
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. By virtue of Section 13 of the J&K Reorganisation Act, with effect 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 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 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

10
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 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 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 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.
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
subsection (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 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 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 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 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.
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 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

11
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 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 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. 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 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 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. 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.
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 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 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 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 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 sub-section (1), the Election
Commission shall have regard to the following provisions, namely:—
(a) all the constituencies shall be single-member constituencies;

12
(b) 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 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 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 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.
(4) If, owing to death or resignation, the office of an associate member falls vacant, it shall
be filled as far as practicable, in accordance with the provisions of subsection (3).
(5) The Election Commission shall—
(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 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;
(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 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 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 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 bringing such order up-todate.
(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.
62. (1) On and from the appointed day, notwithstanding the publication of orders under
subsection (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:
(a) in section 2(f), the words “but does not include the State of Jammu and Kashmir” shall
be omitted; and

13
(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 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 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 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.
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 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)
27. As noted earlier, 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 (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 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 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 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 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. 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:-

14
“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 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 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]:
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)
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 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 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 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;
(b) every assembly constituency shall be so delimited as to fall 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
(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—
(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;
(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 or places in each State as it thinks fit; and

15
(d) thereafter by one or more orders determine— (i) the delimitation of parliamentary
constituencies; and
(ii) the delimitation of assembly constituencies, of each State.”
(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 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 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 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 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
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 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 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 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 6 th March 2020
32. The impugned notification dated 6th March 2020 constituting the Delimitation
Commission reads thus:
“MINISTRY OF LAW AND JUSTICE

16
 Legislative Department
NOTIFICATION
New Delhi, the 6th March, 2020
S.O. 1015 (E). – In exercise of the powers conferred by Section 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, consisting of the following member, namely:-
(i) Justice (Retd.) Ranjana Prakash Desai - Chairperson
(ii) Shri Sushil Chandra, Election Commissioner - Member, (ex officio)
(iii)The State Election Commissioner of the concerned State of Union Territory appointed
under clause (1) of article 243 K or under clause (1) of article 243L of the Constitution, as the
case may be.
2. The appointment of Justice (Retd.) Ranjana Prakash Desai 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, -
(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).
(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)
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 subsection (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 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 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 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 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.

17
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
(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 Delimitation 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 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 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 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 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 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 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 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
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 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

18
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 of the appointment of the Chairperson.
Exclusion of the North-Eastern States from the purview of the notification dated
6 th March 2020
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 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 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 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 issued regarding the said
discrepancies. Therefore, the said letter was 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 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 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 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 cannot be treated as equals. Hence,
the argument based on the violation of Constitutional provisions including Article 14
deserves to be rejected.
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 20th May 2022. While
accepting that he has not challenged these subsequent orders, the learned counsel

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submitted that the petitioners cannot challenge the said order in view of subSection
(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 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 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 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 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
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 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 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 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 of the Parliamentary and Legislative
Assembly Constituencies made by 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 to be rejected.

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43. The petitioners have overlooked the fact that clause (b) of subSection (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 year 2001 in subsection (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
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 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. 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.
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 no
provision which is pari materia with clause (b) of subSection (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 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. 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.

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