Parliament Can Convert Existing State Into Union Territories: SC Rejects Plea Against Govt’s Decision In J&K Delimitation Case

The Supreme Court has recently held that a parliament by making a law can convert an existing State into one or more Union Territories while dealing with the Jammu and Kashmir Delimitation Commission case.

The Court dismissed the writ petition challenging the legality and validity of the action of constituting a Delimitation Commission for the Union Territory of Jammu and Kashmir under the provisions of the Delimitation Act, 2002 and the exercise of delimitation undertaken by the Commission.

The two-Judge Bench of Justice Sanjay Kishan Kaul and Justice Abhay S. Oka observed, “Parliament by making a law can convert an existing State into one or more Union territories … Parliament is empowered by law to create a body of legislature for the Union territories of Puducherry and J&K … 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 Bench also noted that 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.

Senior Advocate Ravi Shankar Jandhyala appeared on behalf of the petitioners while Solicitor General of India Tushar Mehta appeared for the Union of India.

Facts –

The Constitution (Application to Jammu and Kashmir) Order, 2019 directed that all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of J&K, subject to modifications made to Article 367 as set out in the said order. Thereafter, a declaration under Clause (3) of Article 370 of the Constitution bearing was made by the 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.

The Jammu and Kashmir Reorganisation Act, 2019 was enacted which provided for the reorganisation of the State of J&K by dividing it into two Union Territories and a new Union Territory of Ladakh was created comprising territories of Kargil and Leh Districts in the erstwhile State of Jammu and Kashmir. The Delimitation Act, 2002 which was not applicable to the erstwhile State of J&K, was made applicable by virtue of Section 62 of the J&K Reorganisation Act to the newly formed Union Territory of J&K and in 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 Supreme Court after considering the arguments of both the counsel said, “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.”

The Court further asserted that 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 and hence, such an argument deserves to be rejected.

“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 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 51 delimitation will have to be carried out on the basis of the figures of the census held in the year 2011”, the Court observed.

The Court also said that the effect of Section 63 is that once the exercise of readjustment/delimitation is made based on 2011 census figures, the same will be frozen till the relevant figures of the first census taken after 2026 are available.

“… 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”, the Court held.

The Court further said that the exercise of delimitation/readjustment of the seats in the Union Territory of J & K was required to be made by the Delimitation Commission based on the figures of the 2011 census and that 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.

“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”, the Court noted.

The Court observed that in the Acts, there is no provision that 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.

The Court, therefore, held that there is absolutely no merit in any of the contentions raised by the petitioners and 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.

Accordingly, the Court dismissed the plea.

Cause Title- Haji Abdul Gani Khan & Anr. v. Union of India & Ors.

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