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Despite a Supreme Court ruling that empowers it to redraw J&K seats, the Center defends its decision

The final delimitation order for the Union Territory is displayed by members of the commission. (PTI/file)

On Thursday, the Centre defended the power of the Delimitation Commission to readjust constituencies in Jammu and Kashmir, stating that the J&K Reorganisation Act of 2019 authorizes this action.

Defending the Constitution of the Commission, Solicitor General Tushar Mehta stated to a bench of Justices S K Kaul and A S Oka that the 2019 law does not preclude the establishment of the Delimitation Commission by the Centre and provides two alternative mechanisms for carrying out delimitation for J&K.

It is expected that the bench will reserve its decision on Thursday.

Haji Abdul Gani Khan and Mohammad Ayub Mattoo, petitioners, argued that only the Election Commission is authorized to conduct the delimitation process under the 2019 Act.

Mehta defended this position, “Sections 61 and 62 of the 2019 Act do not preclude the Central Government from establishing a Delimitation Commission under Section 62 of the Act.” Although Section 60 and 61 confer delimitation power on the Election Commission, Sections 62(2) and 62(3) confer delimitation authority on the Delimitation Commission constituted under Section 3 of the Delimitation Act.”.

According to Mehtra, the 2019 law states that the Election Commission may determine the “delimitation of constituencies” and that the “readingjustment of constituencies…shall be carried out by the Delimitation Commission.”.

The use of the expression ‘may’ indicates that the Election Commission has the authority to delimit a territory; on the other hand, the use of the expression ‘shall’ indicates that the Delimitation Commission has a mandatory duty to delimit a territory.

Furthermore, the petitioners argued that delimitation cannot be carried out on the basis of the 2011 Census but rather must be conducted in accordance with the 2001 Census or by waiting for “the first Census after 2026.”

The government proposed to give democracy to the newly formed Union Territory immediately… It was deemed unwise to wait until 2026 to do this, or to do so as per 2001.”

The Centre urged that if the prayers were allowed, it would result in an anomalous situation in which orders issued by the Delimitation Commission would become infructuous when they were published in the Gazette of India.

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