IMPORTANT POINT
Challenge to delimitation law is barred.

JUDGMENT:

GANGULY, J.

1. Leave granted. Jammu and Kashmir National Panthers Party, a recognized political party in the State of Jammu and Kashmir has filed this appeal before this Court seeking to impugn the judgment of Jammu and Kashmir High Court, dated 2nd of June 2009. The High Court dismissed both the writ petitions which raised identical questions. They were heard together and disposed of by the impugned judgment.

2. The main thrust of the challenge before the High Court, as well as before this Court is on the following question:

whether or not the action of the government in postponing the delimitation of territorial constituencies of the State pertaining to the Legislative Assembly until the relevant figures published after the first census taken after 2026 is legally sustainable?

3. In fact the appellant is aggrieved by an amendment to the Jammu and Kashmir Representation of the People Act 1957, especially the amendment in Section 3 thereof. This amendment has been brought about in 2002. Section 3 of the Jammu and Kashmir Representation of the People Act 1957 (hereinafter the said Act), as amended from time to time, is set out below:-

"3. Constitution of Delimitation Commission (1) {As soon as may be after the completion of each census} the Government shall constitute a Commission to be called the Delimitation Commission which shall consist of three member as follows:

(a) two members, each of whom shall be a person {who is or has} been a judge of the Supreme Court or of a High Court in India; and

(b) a Deputy Election Commissioner nominated by the Chief Election Commissioner:

{Provided that until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to constitute a Commission to determine the delimitation of Assembly Constituencies in the State under this sub- section}

(2) The Governor shall nominate one of the members appointed under clause (a) of sub- section (1) to be the Chairman of the Delimitation Commission.

(3) The Delimitation Commission shall determine the delimitation of Assembly Constituencies in the State within such period as may be specified by the Governor."

4. There has been a corresponding amendment also in the sub-section 3 of Section 47 of the Constitution of Jammu and Kashmir, 1957, (hereinafter referred to as Constitution of J & K). Section 47 (3) as amended is set out below:-

"47(3) Upon the completion of each census, the number, extent and boundaries of the territorial constituencies shall be readjusted by such authority and in such manner as the Legislature may by law determine:

Provided that such readjustment shall not effect representation in the Legislative Assembly until the dissolution of the then existing Assembly {Provided that until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust the total number of seats in the Legislative Assembly of the State and the division of the State into territorial constituencies under this sub- section}."

5. The main grievance of the appellant seems to be that in view of the postponing of the delimitation of the constituencies as a result of the aforesaid amendments, the growing imbalance in the matter of composition of various constituencies would continue despite the census operation being carried out. It has been argued before this Court that normally the delimitation exercise is consequent upon a census operation. As a result of the census operation the composition of the population is reflected. That gives rise to an exercise in delimitation for a proper representation of rights of the people in a democratic polity. The further contention is that without these demographical changes being properly reflected in the composition of constituencies by way of a delimitation exercise, the essence of democracy will be defeated in the election. The appellant, therefore, urge that without an exercise in delimitation immediately