SRINAGAR: National Conference Members of Parliament Dr Farooq Abdullah, Muhammad Akbar Lone and Hasnain Masoodi on Wednesday wrote to Chairperson Delimitation Commission Justice (Retd.) Ranjana Prakash Desai and expressed their inability to associate with the commission urging him not to go ahead with the process as the J&K reorganization act 2019 is under judicial scrutiny in the Supreme Court.
The Members of Parliament noted that the Delimitation Commission has been constituted by virtue of Notification S.O. 1015 (E) dated March 6, 2020, in the exercise of powers under Section 3 of the Delimitation Act, 2002 and the Commission in terms of Para 3 (i) is required to delimit the constituencies of the Union Territory of Jammu and Kashmir in accordance with the provisions of Part V of the Jammu and Kashmir Reorganization Act, 2019 (34 of 2019) and the provision of the Delimitation Act, 2002 (33 of 2002). “In our view the Jammu and Kashmir Reorganization Act, 2019 is palpably unconstitutional and has been enacted in disregard and violation of mandate and spirit of Constitution of India and therefore not to be acted upon. We have thrown a challenge to Constitutional validity of the Jammu and Kashmir Reorganization Act, 2019, the exercise of powers where-under the meeting in question is proposed to be held, as also C.O. 272 and C.O. 273 of 2019, in Writ Petition (Civil) 1037 of 2019 in the Hon’ble Supreme Court. The Act and C.O. 272 and C.O 273 of 2019 are also questioned in a number of Writ Petitions awaiting disposal, on a date, before the Hon’ble Court,” the MPs maintained
“That the Hon’ble 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 Constitutional Bench commenced hearing quite expeditiously yet because of Pandemic COVID-I9 the hearing got delayed and all the Petitions are expected to be taken up once the physical hearing commences,” they said.
The MPs noted that they are of the humble opinion that as vires or Constitutional validity of the Jammu and Kashmir Reorganization Act, 2019 and the Constitutional Orders (C.O. 272 and C.O. 273) were under Judicial Scrutiny before the Supreme Court, the principle of Constitutional Propriety demanded that the Jammu and Kashmir Reorganization Act, 2019 should await 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 Act vires whereof are under the scrutiny of the Court, as the implementation of such an Act might amount to pre-empting the judicial verdict. “That under the Constitutional scheme Delimitation of Assembly Constituencies fell within powers of the State of Jammu and Kashmir and under the second Proviso to Section 47 Constitution of Jammu and Kashmir, 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 People’s Act, 1957 Part II dealt with the constitution of Delimitation Commission and the procedure to be followed by the Commission,” they said.”
“The Proviso to Section 3 of The Jammu and Kashmir Representation of 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 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 the enactment of the Jammu and Kashmir Reorganization Act, 2019 and C.O. 272 and C.O. 273 as the Constitution being the outcome of the exercise of constituent power cannot be abrogated or annulled by the Parliament or any other authority,” they added.
The Party MPS stated that they maintain the view that against the backdrop of respectful submissions made above it would not be in tune with the mandate and spirit of Constitution of India to associate with the proceedings taken in exercise of the powers under an Act the constitutional validity whereof was under challenge and under the judicial scrutiny by the highest Constitutional Court of the Country to which all of us must bow out of utmost respect and reverence. “We would also respectfully and with all humility at our command, request Hon’ble Chairperson, a renowned legal luminary of the Country not to go ahead with the proceedings as it may amount to exercise of powers under an Act constitutional validity whereof is being examined by the Constitutional Bench of the Hon’ble Supreme Court and is therefore at present constitutionally suspect law,” the said.