On April 13, when Haji Abdul Gani Khan and Dr Mohammad Ayub Mattoo came to know that their petition had been admitted by the Supreme Court, they were surprised.

Their petition, filed at the end of March, challenged the Union government’s decision to appoint a delimitation commission to redraw the map of the assembly and parliamentary constituencies of the Union Territory of Jammu and Kashmir.

The appointment of the delimitation commission in March 2020 was considered a major step towards paving the way for elections in Jammu and Kashmir after the erstwhile state’s special status under the Constitution was scrapped on August 5, 2019.

Right from the start, the commission was dogged by controversies and met with scepticism from regional Kashmiri parties. But it finalised the delimitation order for Jammu and Kashmir on May 5.

According to the provisions of the Jammu and Kashmir Reorganisation Act, 2019, the commission added seven more seats to the Jammu and Kashmir assembly, six of which were added in Jammu and one in Kashmir. This took the total strength of the Jammu and Kashmir assembly to 90 assembly constituencies, of which 43 are in Jammu and 47 are in Kashmir.

However, the petition by Khan and Mattoo does not concern itself with the final order of the delimitation commission. Instead, it questions the legal validity and procedure followed by the government in establishing the delimitation commission.

Khan, a former Congress leader from Srinagar, said that when they filed the petition, they did not expect it to even be admitted by the Supreme Court. Some had told them not to even attempt filing such a plea. “Many of our friends and colleagues told us we are wasting our time,” said Mattoo, the co-petitioner and a former colleague of Khan in the Congress.

But the apex court found merit in the concerns raised by the petitioners.

On December 1, the Supreme Court reserved its judgement on the petition after the conclusion of arguments. “It will be a miracle, if not less, if the Supreme Court rules in our favour,” said Khan.

Regardless of the judgement, the petitioners say they have succeeded in making a point. “Whatever the judgement, we wanted to register before the court that the delimitation is unjustified and unacceptable to the people of Jammu and Kashmir,” said Mattoo.

Mohammad Ayub Mattoo. Credit: Scroll Staff.

The petition

On March 6, 2020, the Union government constituted a three-member delimitation commission chaired by retired Justice Ranjana Prakash Desai. The Centre outlined the commission’s task: “[The] 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 commission was constituted under Section 3 of the Delimitation Act, 2002, which deals with the composition of members of a delimitation commission. Taking the 2011 Census as a benchmark, the commission was tasked with carrying out the delimitation of the assembly and parliamentary constituencies in Jammu and Kashmir in “accordance with the provisions of Part-V of the Jammu and Kashmir Reorganisation Act, 2019”.

Part V of the Jammu and Kashmir Reorganisation Act outlines the norms and details of the delimitation process.

The Reorganisation Act, passed on August 9, 2019, deals with restructuring the former state of Jammu and Kashmir into the Union Territories of Jammu and Kashmir, and Ladakh. Under the act, the number of seats in the legislative assembly of the Union Territory of Jammu and Kashmir was increased from 107 to 114.

Before the reorganisation of the state, the total strength of the assembly was 111 seats, including 24 seats designated for the territorial constituencies of the parts of Jammu and Kashmir that are occupied by Pakistan. Ladakh, as part of the erstwhile state, had four assembly seats.

After the separation of Ladakh from Jammu and Kashmir, the total strength of the assembly was reduced to 107 seats. Following delimitation, the Union Territory has 114 assembly segments, including the 24 seats reserved for Pakistan-occupied Kashmir.

According to the petitioners, the very act of increasing the number of assembly seats in Jammu and Kashmir through the Jammu and Kashmir Reorganisation Act, 2019, is “ultra vires of the constitutional provisions such as Article 81, 82, 170, 330 and 332” and various statutory provisions of the reorganisation act.

Further, the validity of the reorganisation act itself has already been challenged in the Supreme Court through a series of petitions filed against the August 5, 2019, decision of the Union government to scrap the special status and statehood of Jammu and Kashmir.

The petition points to the constitutionally-mandated freeze on increasing the number of assembly and parliamentary constituencies in India till 2026.

The freeze is governed by the Constitution (Eighty-fourth Amendment) Act, 2001, Constitution (Eighty-seventh Amendment) Act, 2003, and subsequent amendments to Article 81 (composition of the house of the people), Article 82 (readjustment after each census), Article 170 (composition of the legislative assemblies), Article 330 (reservation of seats for Scheduled Castes and Scheduled Tribes in the house of the people) and Article 332 (reservation of seats for Scheduled Castes and Scheduled Tribes in the legislative assemblies of the states) of the constitution.

Haji Abdul Gani Khan, third from right, during a Congress protest in Srinagar in 2021. Credit: Umer Asif.

Violation of right to equality

Nearly a year after the commission was constituted, the central government limited the panel’s work to Jammu and Kashmir and cancelled the exercise in the states of Assam, Arunachal Pradesh, Manipur and Nagaland. The Centre also extended the tenure of the delimitation commission by “one more year”. On February 21, the delimitation commission for Jammu and Kashmir was given another extension of two months.

According to the petitioners, singling out Jammu and Kashmir for delimitation is unconstitutional and discriminatory before the law. “While Article 170 of the Constitution of India provides that the next delimitation in the country will be taken up after 2026, why has the UT of Jammu and Kashmir been singled out?” the petition asks.

Lawyer Ravi Shankar Jandhyala, the legal counsel for the petitioners, told Scroll.in that the names of the four other states, originally mentioned in the first notification of the delimitation commission on March 6, 2020, were deleted later and only Jammu and Kashmir was singled out for the exercise.

According to Jandhyala, this is a violation of Article 14 of the Constitution on equality before law. “Either you do it [delimitation] for everybody or don’t do it for anybody,” said Jandhyala. “That’s what Article 170 is all about.”

Jandhyala also explained how the delimitation commission’s exercise did not fall under the purview of the Constitution. “The freeze on the readjustment and delimitation of assembly and parliamentary seats till 2026 is the scheme of the Constitution,” he said.

“Once the scheme of the Constitution is violated, rule of law is violated,” he said. “When the rule of law is violated, Article 14 [equality before law] is violated.”

The petition also states that the notifications on the delimitation commission issued by the Ministry of Home Affairs, Ministry of Law and Justice, and the Election Commission of India, are “without power, jurisdictions and authority” and that “any power” exercised by the three “is without any statutory or constitutional source of power”.

It also asserts that the issuance of notifications regarding the constitution of the delimitation commission on March 6, 2020, and its subsequent extension in March, 2021 by the Ministry of Law and Justice is “nothing but usurping the jurisdiction” of the Election Commission. The petition contends that the Election Commission “abdicated its powers, duties and responsibilities in favour” of the Ministry of Home Affairs, and Ministry of Law and Justice.

In India, the last delimitation exercise was carried out in 2002 under the Delimitation Act, 2002. With the 2001 population Census as a benchmark, the commission redrew the electoral map of most of India. The exercise concluded with the issuance of the Delimitation of Parliamentary and Assembly Constituencies Order, 2008. Currently, all elections in the country are conducted on the basis of this delimitation.

According to the petition filed by Khan and Mattoo, only the Election Commission can carry out the “process of delimitation (for necessary updation) after the Parliamentary and Assembly Constituencies Delimitation Order, 2008 is notified”.

Since the delimitation commission of 2002 has completed its tenure, the petitioners have challenged the constitution of a fresh delimitation commission for Jammu and Kashmir under Section 3 of the Delimitation Act, 2002. The petition says it is “without jurisdiction, unconstitutional and ultra vires to the election laws apart from J&K Reorganisation Act, 2019”.

A veteran and a newbie

Though they mounted a united challenge, petitioners Khan and Mattoo have little in common in terms of their journey into politics.

Coming from a renowned business family of Srinagar’s old city, Haji Abdul Gani Khan, who is now in his 60s, joined politics as a delegate of the National Conference during his student days.

In the early 1970s, Khan joined the Congress after he liked its “programmes” and “secular mindset”. His nearly five-decade-long journey with the Congress came to an end this year after senior party leader Ghulam Nabi Azad quit in August and floated a new political party. “Azad Sahab and I studied together in Kashmir University and we were in Congress together,” said Khan. “I have known him since long.”

One of the reasons behind Khan’s exit from the Congress was the party’s alleged carelessness towards the senior members of the party. Khan cites his own example. “Even after serving the party for nearly five decades, the highest post I was given was that of Srinagar district president of the party,” he said.

Khan also said the party did not support him or Mattoo in challenging the delimitation commission before the Supreme Court. “Nobody had the courage to challenge it before the court,” said Khan. “Not even our elected Members of the Parliament from Kashmir.”

Khan said he and Mattoo filed the petition in their individual capacity and not as Congress members.

Co-petitioner Mohammad Ayub Mattoo, 65, a dental surgeon, hails from South Kashmir’s Kulgam district. The son of a freedom fighter and a veteran Congress worker from Kulgam, Mattoo is relatively new to politics. Mattoo had left the Kashmir valley in 1996 to work as a doctor in Saudi Arabia. “I returned to Kashmir in 2013 on the insistence of the late Mufti Mohammad Sayeed who knew my father for a long time,” said Mattoo. Before founding the Peoples Democratic Party in 1999, Sayeed was an old Congress hand in Kashmir. Sayeed, a former Jammu and Kashmir chief minister, died in January 2016.

In April 2013, Mattoo formally joined Sayeed’s Peoples Democratic Party and started working as a party functionary in DH Pora assembly segment of Kulgam district. But by 2017, Mattoo had become disillusioned. “We would give feedback to the party’s top leadership but it wasn’t heeded to,” said Mattoo. He said that for one year, he tried in vain to get an appointment with Mehbooba Mufti.

In 2017, Mattoo joined the Congress and was immediately elevated as the Kulgam district president. It was in the Congress where Mattoo and Khan became “close friends”.

“We would often discuss why only Jammu and Kashmir was chosen for delimitation in the entire country when there’s a freeze on delimitation till 2026,” said Mattoo.

Mattoo said he and Khan were dejected by the failure of the top elected leaders of Jammu and Kashmir to challenge the delimitation exercise in court. “That’s when we decided if no one else has done it, what’s stopping us from doing it?” said Mattoo. They both went to Delhi, had a discussion with their lawyers and filed the petition.

Much has changed for Khan and Mattoo since they filed the petition in March. While they were both in the Congress then, they are now in two different parties. Khan joined Ghulam Nabi Azad’s newly floated Democratic Azad Party while Mattoo has found Aam Aadmi Party’s manifesto “people friendly” and “good”.

So, whose petition is it now? “It’s the petition of people of conscience of Jammu and Kashmir,” said Khan.