Two residents of the Union territory of J&K on Tuesday urged Supreme Court to quash the Centre’s decision to conduct the delimitation exercise in the erstwhile state on the ground that the same was unconstitutional and illegal as it is sought to be undertaken through a defunct Delimitation Commission instead of the Election Commission of India.

The petition jointly filed by Haji Abdul Gani Khan and Mohammad Ayub Mattoo, residents of Srinagar, has sought a declaration from the apex court that the increase in number of seats from 107 to 114 (including 24 seats in Pakistan occupied Kashmir) in the Union Territory of Jammu & Kashmir sought to be undertaken by the Centre and law ministry “is ultra vires” the Constitution.

It was submitted the decision to undertake the exercise was in violation of Articles 81, 82, 170, 330 and 332 (relating to composition of Assembly) and statutory provisions under section 63 of the Jammu & Kashmir Reorganisation Act, 2019, since the term of the last Delimitation Commission set up on July 12, 2002 under section 3 of the Delimitation Act, 2002 had expired way back in 2008.

Further, it was contended that under the earlier orders issued by the Delimitation Commission on July 5, 2004, the total number of existing seats in the legislative Assemblies of all states, including UTs of the National Capital Region and Pondicherry, fixed based on the 1971 census shall remain unaltered till the first census to be taken after the year 2026.

The petitioners through advocate Ravi Shankar Jandhyala complained that initially the Union government had issued the impugned notification on March 6, 2020 constituting the Delimitation Commission to take up delimitation in the UT of J&K and states of Assam, Arunachal Pradesh, Manipur and Nagaland. But subsequently through another notification on March 3 this year, the Centre had withdrawn the notification for carrying out delimitation exercise in the states of Assam, Arunachal Pradesh, Manipur and Nagaland and confined the delimitation exercise to J&K Union territories thus violating Article 14 of the Constitution which mandated equality for all citizens.

The Union government, ministry of law and justice (legislative department) had earlier issued a notification on March 6, 2020, in exercise of power under section 3 of the Delimitation Act, 2002, constituting a Delimitation Commission, with Justice (Retd) Ranjana Prakash Desai as Chairperson, for the purpose of delimitation of Assembly and Parliamentary constituencies in the Union Territory of Jammu and Kashmir and the state of Assam, Arunachal Pradesh, Manipur and Nagaland, for a period of one year.

The petition stated that 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.

In support of the contention, the petitioners cited Section 9 (1)(b) of the Representation of Peoples Act, 1950 and Section 11 (1)(b) of the Delimitation Act 2002, that it is the Election Commission which has the power to undertake the exercise of updating the delimitation exercise.

“The action of the Respondent Nos.1 & 2 (Centre and law ministry) in issuing the notifications… for the Delimitation of Assembly Constituencies for the UT of Jammu & Kashmir are without jurisdiction and nothing but usurpation of the jurisdiction of Respondent no.5 (Election Commission)…” the petitioners pleaded.