HAJI ABDUL GANI KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The main challenge in this writ petition under Article 32 of the constitution of India is to the legality and validity of the action of constituting a Delimitation Commission for the Union Territory of Jammu and Kashmir under provisions of the Delimitation Act, 2002 and the exercise of delimitation undertaken by the Commission.

(2.) The Constitution (Application to Jammu and Kashmir) Order, 2019 bearing C.O. No.272 was issued by the Hon'ble President of India on 5/8/2019. The said order was issued in the exercise of powers conferred by clause (1) of Article 370 of the Constitution of India. The said order directed that all the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir, subject to modifications made to Article 367 as set out in the said order. By the said order, Clause (4) was added to Article 367 providing that the expression "Constituent Assembly of the State referred to in clause (2)" in the proviso to clause (3) of Article 370 of the Constitution, shall be read as "Legislative Assembly of the State". On 6/8/2019, a declaration under Clause (3) of Article 370 of the Constitution bearing C.O.No.273 was made by the Hon'ble President of India on the recommendation of the Parliament, by which it was declared that all the clauses of Article 370 shall cease to be operative.

(3.) The Jammu and Kashmir Reorganisation Act, 2019 (for short, 'the J&K Reorganisation Act') was enacted which provided for the reorganisation of the State of Jammu and Kashmir by dividing it into two Union Territories. A new Union Territory of Ladakh was created comprising territories of Kargil and Leh Districts in the erstwhile State of Jammu and Kashmir. The Union Territory of Jammu and Kashmir (for short, 'the Union Territory of J & K) was formed comprising the existing State of Jammu and Kashmir other than Kargil and Leh Districts. The J&K Reorganisation Act came into force with effect from 31/10/2019. By virtue of Sec. 13 thereof, Article 239A of the Constitution of India which was earlier applicable only to the Union Territory of Puducherry, became applicable to the Union Territory of J & K. Article 239A confers a power on the Parliament to enact a law for creating a legislature for the Union Territory.