J&K delimitation orders have acquired the ‘force of law’

The Home Ministry and the Election Commission of India (ECI) have both agreed in the SC, that delimitation orders of redrawing Assembly and Lok Sabha constituencies in the Union Territory of Jammu and Kashmir have acquired the “force of law”.

• This is in context to the petition filed by a Srinagar resident challenging the constitution of the Delimitation Commission on March 6, 2020.
• Issues raised in the petition:
  • increase in the number of Assembly seats in Jammu and Kashmir was unconstitutional and ultra vires the Jammu and Kashmir Reorganization Act, 2019.
  • why Jammu and Kashmir were “singled out” for delimitation when the next delimitation in the country would only be taken up after 2026.

Union Government response:

• Derives power from special legislation: The Centre has mentioned that it derives its powers to form, and fix the scope and tenure of the Delimitation Commission under Section 3 of the Delimitation Act of 2002, which is a ‘special legislation”.
• Provided opportunity to the public: After the notification about the increase, full opportunity to members of the public were given to make oral and written submissions to the Delimitation Commission”.
• Order cannot be challenged: The government also added that the delimitation order cannot be “re-agitated” in a court once it had gained finality by publication in the gazette. Hence, after notification in the official gazette, redrawing Assembly and Lok Sabha constituencies in the Union Territory of Jammu and Kashmir have acquired the “force of law”.

Why was the Commission Set Up?

• Delimitation became necessary when the Jammu and Kashmir Reorganization Act, 2019 increased the number of seats in the Assembly.
• The erstwhile J&K state had 111 seats — 46 in Kashmir, 37 in Jammu, and 4 in Ladakh — plus 24 seats reserved for Pakistan-occupied Kashmir (PoK).
• The Delimitation Commission was set up on 6th March 2020.

What is Delimitation?

• Delimitation is the act of fixing or redrawing the limits or boundaries of territorial constituencies (Assembly or Lok Sabha seat) in a country or a province having a legislative body, as per the Election Commission.
• The delimitation exercise is carried out by an independent high-powered panel known as the Delimitation Commission whose orders have the force of law and cannot be questioned by any court.
• Delimitation Commissions had been set up four times — 1952, 1963, 1973, and 2002 under the Acts of 1952, 1962, 1972, and 2002.
• There was no delimitation after the 1981 and 1991 Censuses.

Constitutional Basis for Delimitation:

• Under Article 82, the Parliament enacts a Delimitation Act after every Census.
• Under Article 170, States also get divided into territorial constituencies as per the Delimitation Act after every Census.
• The Delimitation Commission is appointed by the President of India and works in collaboration with the Election Commission of India.