Supreme Court Reserves Orders On Plea Seeking Delimitation & Increase Of Assembly Seats In Andhra Pradesh, Telangana

The Supreme Court today reserved orders on a plea seeking directions for the Union to set in motion delimitation process for increasing the number of assembly seats in the States of Andhra Pradesh and Telangana.

A bench of Justices Surya Kant and N Kotiswar Singh heard the matter.

Briefly put, the petition, filed by Professor (Dr.) K. Purushottam Reddy, sought directions to the respondents to operationalize Section 26 of the Andhra Pradesh Reorganization Act. It was contended that delimiting the assembly and parliamentary constituencies of only the newly minted Union Territory of Jammu and Kashmir, with the exclusion of Andhra Pradesh and Telangana, created an unreasonable classification and was therefore unconstitutional.

The Court called for the responses of the Union of India, States of Andhra Pradesh and Telangana, and the Election Commission of India in 2022.

Today, counsel for the petitioner contended that the petitioner was seeking parity with Jammu and Kashmir for the States of AP and Telangana. Pointing to the delimitation exercise undertaken for J&K, he said that the UT's delimitation commission was the only commission to be appointed after the Andhra Pradesh Reorganization Act came into force.

The counsel referred to Election Commission's affidavit, which stated that inclusion/exclusion of states in the notifications of the Delimitation Commission is the responsibility of the Union of India. He highlighted that the Union has not filed a reply in the matter. Agreeing with ECI's stand, Justice Kant said, "the Election Commission is probably right, they can only deal with the mandate given to them".

Additional Solicitor General KM Nataraj, appearing for the Union, relied on Section 26 of the Andhra Pradesh Reorganization Act and submitted that the process will have to wait until the 2026 census. Remarking that delimitation is a humongous exercise which cannot be undertaken overnight, the ASG further stressed that J&K delimitation, which is being pressed into service by the petitioner, was in the case of a Union Territory.

The petitioner's counsel objected to the distinction sought to be drawn (between a state and a UT) by submitting that J&K was proposed to be a state. He submitted that in the Article 370 abrogation case, it has categorically been said that statehood of J&K will be restored. When Justice Kant probed how the petitioner can wriggle out of the mandate of Article 170 of the Constitution, the counsel replied that the provision was applicable to J&K as well.

"Don't be obsessed with J&K, make out your own case that irrespective of constitutional mandate in Article 170...", the judge told the counsel. Thereafter, the counsel pointed out that states, though excluded in a subsequent notification, were included in the notification of 2020 and Article 170 was not cited as a reason to exclude them.

"There is so much controversy between northern and southern states with respect to delimitation...there is total confusion as to what would be the prospective date of delimitation exercise. In view of that, they appointed a delimitation commission and they did not include State of Andhra Pradesh...Section 26 increased the number of seats but it is not being implemented only for the want of delimitation. There is no prospect as of now that any delimitation exercise even after 2026 will be conducted with regard to controversy relating to southern states...and that is subject to legal challenge also...what was contemplated to be done after every 10 yrs has not been done for the last 50 yrs", the counsel submitted.

He also contended that the states of Assam, Arunachal Pradesh, Manipur and Nagaland were included in the prior delimitation notification issued by Union of India, but not Andhra Pradesh and Telangana, even though the north-eastern states were also governed by Article 170.

In response to a query by the bench as to whether it was the petitioner' argument that as and when the power is exercised by the Union under the Delimitation Act, it must apply to all states uniformly, the petitioner's counsel answered in the affirmative. "States would include Union Territories also", he added. The counsel also emphasized that Section 2(f) of the Delimitation Act says that States include Union Territories.

"States of AP and Telangana which came 5 years before J&K notification were not included. In the next notification, north-eastern states were omitted. Reason given for exclusion was not Article 170. I am saying their exclusion was wrong and I should also have been included in that", he argued.

In support of the submissions, the counsel placed reliance on Haji Abdul Gani Khan v. Union of India, where a challenge to the delimitation exercise in J&K was dismissed. He urged that the north-eastern states (Assam, Arunachal Pradesh, Manipur and Nagaland) were excluded from the subsequent notification not on the ground of Article 170, but due to other reasons (like discrepancies in census data). It was also argued that there are provisions in the Constitution which mention 'States' but also include 'Union Territories'.

Subsequently, the counsel referred to the majority judgement in Article 370 abrogation case, to say that a UT can be created out of a state but the state cannot be wiped out completely. "That is completely alien to the controversy in the present case", Justice Kant observed in response.

The petitioner's counsel concluded by submitting that if delimitation was done in the case of J&K just because it was a Union Territory, it must be noted that J&K was not intended to be a UT for all times to come.

Responding to the submissions, ASG Nataraj referred to Article 82 of the Constitution (providing for re-adjustment of seats in Lok Sabha after every census), proviso whereof reads thus,

"Provided also that until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust-

(i) the allocation of seats in the House of the People to the States as readjusted on the basis of the 1971 census; and

(ii) the division of each State into territorial constituencies as may be readjusted on the basis of the 2001 census, under this article."

The ASG also submitted that in the Haji Abdul Gani Khan decision, a distinction has clearly been drawn between a State and a Union Territory. He again urged that the exercise can be done only after the 2026 census, and thatthere is no enforceable right in view of the provisos of Articles 82 and 170.

Background

In 2014, after years of political strife, the Parliament approved the creation of Telangana comprising 10 districts from north-western Andhra Pradesh by enacting the Andhra Pradesh Reorganization Act.

Section 26(1) of the Act states that, inter-alia, subject to the provisions contained in Article 170 of the Constitution and without prejudice to Section 15 of the Act, the number of seats in the Legislative Assembly of the successor States of Andhra Pradesh and Telangana would be increased from 175 and 119 to 225 and 153, respectively. However, Article 170(3) of the Constitution enjoins the Government from readjusting the total number of seats in the Assembly of each State until after the publication of the first Census after 2026.

In response to an un-starred question asked on July 27, 2022 by Member of Parliament (Rajya Sabha) G.V.L. Narasimha Rao on the implementation of Section 26 and the time frame thereof, the Minister of Home Affairs answered -

"Unless and until Article 170 of the Constitution is amended in line with Section 26 of Andhra Pradesh Reorganization Act, 2014, the number of seats cannot be increased."

After the abrogation of Article 370 (which resulted in creation of the union territories of Jammu and Kashmir and Ladakh), on 06.03.2020, the Union Government, in exercise of power under Section 3 of the Delimitation Act, 2002, issued a notification for delimitation of Assembly and Parliamentary constituencies in the UT of J&K and States of Assam, Arunachal Pradesh, Manipur and Nagaland. By notification dated 03.03.2021, the 2020 notification was amended - Delimitation Commission was extended for another year and States of Assam, Arunachal Pradesh, Manipur and Nagaland were taken out of the purview of the said notification.

In the process, 7 new Assembly seats were increased - 6 in Jammu, and 1 in Kashmir. Resultantly, the Union Government courted controversy because, among other reasons, the exercise was undertaken despite delimitation generally being carried out on the basis of census population.

Case Title: K. PURUSHOTTAM REDDY Versus UNION OF INDIA AND ORS., W.P.(C) No. 488/2022 (and connected case)