WP Filed in SC under Art 32 by citizens of Kashmir, questioning delimitation of J&K Brief Note Violative of various Unconstitutional Provisions 1. If August 5th 2019 was to unite Jammu and Kashmir State with the rest of India, then delimitation process defeats “new order” of One Nation One Constitution in the country. While Art. 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? 2. WP in SC was filed under Art 32 on 28.03.2022, inter alia, for a declaration that the increase of number of seats from 107 to 114 (including 24 seats in Pakistan Occupied Kashmir) in the Union Territory of Jammu & Kashmir, as provided in the J&K Reorganisation Act, 2019, is ultra vires the Constitutional Provisions such as Articles 81, 82, 170, 330 and 332 and Statutory Provisions particularly Section 63 of the Jammu & Kashmir Reorganisation Act, 2019, 3. It is submitted that while rendering opinion on the provision to increase the number of Assembly seats in both states of Telangana and Andhra Pradesh , as provided in the Andhra Pradesh Reorganisation Act, 2014, the Attorney General of India, had observed as under:- “8. Thus the increase in the number of seats mentioned in Section 26 of the Act being “subject to the provisions contained in Article 170 of the Constitution ......” cannot be given effect. Though it is elementary that no provision of an Act can be sustained if it is contrary to the Constitution . The position would still be the same even if Section 26 was to contain words to the effect “notwithstanding” anything contained in the Constitution. 9. Reference may be made in this regard to a judgment of the Supreme Court reported in (2004) 6 SCC 36 “Engineering Kamgar Union Vs Electro Steel Casting”. 4. In Engineering Kamgar Union case it was held: ''Even if Section 25-S of the State Act is read to have an overriding effect, undoubtedly the provisions of the supreme law shall prevail over a statue. of 1 3 A non obstante clause contained in a statue cannot override the provisions of the Constitution of India. Violation of Art. 14 - Unconstitutional 5. Notification S.O. No. 1015(E) dated 06.03.2020 constituting the Delimitation Commission to take up delimitation in the UT of J&K and states of Assam, Arunachal Pradesh, Manipur and Nagaland is violative of Art 14. The same order is speaking of two different population ratios. The delimitation in ''UT of J&K'' is to be done on the '''basis of the 2011 population’’', while the delimitation in the ''four states of the North East'' are to be done on the '''basis of the 2001 population'' '. This is unconstitutional, violates Art 14, as it attracts Classification. 6. The Ministry of Law and Justice (Legislative Department), issued Notification No. SO 1023 (E)Dt 03.03.2021. In the said notification,(i) in the opening paragraph, (a) the words, and the States of Assam, Arunachal Pradesh, Manipur and Nagaland”, shall be omitted; 7. The omission of Assam, Arunachal Pradesh, Manipur and Nagaland from the process of delimitation vide, Notification No. SO 1023 (E)Dt 03.03.2021 and conducting delimitation only forUnion Territory of Jammu & Kashmir is unconstitutional as it amounts to ‘’classification’’. 8. It is submitted that conducting delimitation only for Union Territory of Jammu & Kashmir is unconstitutional as it amounts to further Classification as held in Subramanian Swamy case ... ..''The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. “ It is also well-established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.” Delimitation Commission set up without any Statutory or Constitutional source of power 9. It is submitted that neither the Union, nor the EC have any Power, Authority, Jurisdiction to establish a Delimitation Commission u/s 3 of the Delimitation Act 2002, which has become inappropriate by the year 2007 ''when the of 2 3 commission was wound up'' and after which the Delimitation of Parliamentary and Assembly Constituencies Order was issued in 2008, following due procedure, thereby any power exercise by the respondent 1, 2 and 5 is without any Statutory or Constitutional source of power ; 10. According to Election Laws, it is only the Election Commission that must carry out the process of delimitation (necessary updation) after the Parliamentary and Assembly Constituencies Delimitation Order, 2008 is notified. Nobody is competent to carry out the delimitation process since the delimitation has been completed and the Delimitation Commission itself has become inappropriate. Issuance of Notification by the Law and Legislative Department appointing the Delimitation Commission is without jurisdiction, unconstitutional and ultra vires to the election laws apart from J&K Reorganisation Act, 2019. Justification for resorting to Art 32 of the Constitution 11. As the Notification S.O. No. 1015(E) dated 06.03.2020, constituting the Delimitation Commission to take up delimitation, States of Assam, Arunachal Pradesh, Manipur and Nagaland, Union Territory of Jammu & Kashmir (apart for Andhra Pradesh and Telangana, where delimitation to increase the number of assembly seats in both the states was denied), which is under challenge pertains to several states, I am afraid I cannot approach all the other 5 State High Courts and since it affects several states of this country, violates Art 14, I am approaching this Hon’ble Court under Art 32 of the Constitution of India as the delimitation is done on population census and free and fair elections are the basic structure of our Constitution. RAVI SHANKAR JANDHYALA Senior Advocate Settled Grounds and Appearing for Petitioners ravishankarjandhyala@yahoo.com Mobile no. +919849026179 of 3 3