Hon’ble Justice (Retd.) Ranjana Prakash Desai,
Delimitation Commission, J&K
Subject: Delimitation of Assembly Constituencies of the UT of J&K.
Jammu and Kashmir National Conference as the oldest political organization of the state has always represented the urges and aspirations of its people. Democratic values are very dear to us, and we strongly feel that issues can only be resolved through dialogue and discussion. Being a torchbearer of democratic principles, JKNC has always stood by the principles of inclusiveness and natural justice. As such we have always resorted to constitutional means to solve problems confronting J&K. So far as the present delimitation exercise is concerned, the party has already communicated its stand to the commission in unequivocal terms.
1. In our view, the J&K Reorganization Act, 2019 is palpably unconstitutional and was enacted in disregard and violation of mandate and the spirit of constitution of India and therefore not to be acted upon. We have thrown challenge to constitutional validity of the Jammu and Kashmir Reorganization Act, 2019.
2. That the Honourable Supreme Court has been pleased to refer the petitions to the constitutional bench (five judge) of the Hon’ble Court for consideration and to examine the constitutional validity of the Act and C.O. 272 and C.O. 273; that though the Hon’ble Constitution bench commenced hearing quite expeditiously yet because of pandemic Covid 19, the hearing got delayed and all the petitions are expected to be taken up once the physical hearing commences.
3. We are of the humble opinion that as the constitutional validity of the J&K Reorganisation Act 2019 and the constitutional orders C.O. 272 and C.O.273 are under judicial scrutiny before the Hon’ble Supreme Court, the principle of Constitutional propriety demands that J&K Reorganisation Act 2019 should await decision of the Hon’ble Supreme Court. We are of the view that under the principle of Constitutional Propriety fundamental to Constitutional democracy, the two pillars of the state – Executive and Legislature, must out of respect to the third pillar i.e. the Judiciary, avoid to implement and exercise powers under an Act vires whereof are under scrutiny of the Court, as implementation of such an Act may amount to pre-empting the judicial verdict.
4. Under the constitutional scheme, delimitation of assembly constituencies fell within powers of the state of J&K and under the second proviso to Sec 47 of the Constitution of J&K, the delimitation of constituencies is to be undertaken once the figures of the first census after the year 2026 are published. The Jammu and Kashmir Representation of the People’s Act, 1957 Part II dealt with the constitution of Delimitation Commission and the procedure to be followed by the Commission. The proviso to Section 3 of the Jammu and Kashmir Representation of the People’s Act, 1957 inserted by Act XXXIII of 2002 provided for delimitation of Assembly Constituencies after the relevant figures for the first census taken after the year 2026 were published. The amendment was upheld by the Hon’ble Supreme Court in J&K National Panthers Party vs. Union of India & Ors 2010 (6) JKJ SC-917. We very humbly and respectfully submit that Jammu and Kashmir Constitution subsists notwithstanding enactment of the Jammu and Kashmir Reorganisation Act, 2019 and C.O. 272 and C.O. 273 as the Constitution being outcome of exercise of constituent power cannot be abrogated or annulled by the Parliament or any other authority.
The above submissions apart, delimitation exercise would be a credible effort in strengthening
democracy only after full statehood is restored to J&K.
However, despite our basic reservations on the issue, the Hon’ble commission has decided to go ahead with the delimitation process. While reiterating our stand and without prejudice to the submissions made above, we request you and other Hon’ble members of the Commission to carry out the delimitation exercise in a free, fair and transparent manner so that the unity and integrity of the state is safeguarded. Population has to be the only norm as has been the practice here in the past in J&K and elsewhere in the country.
Jammu and Kashmir National Conference
Ali Mohammad Sagar (Adv)