Why constitutional validity of J&K Reorganisation Act clause went unchallenged

Subject :Polity

Context:

The Supreme Court on Wednesday quizzed petitioners about the reason for not challenging the constitutional validity of a specific provision in the Jammu and Kashmir Reorganisation Act which gives the Delimitation Commission the power to “carry out” the readjustment of constituencies in the Union Territory formed after the dilution of Article 370 in the erstwhile State

What was the issue:

A Bench of Justices Sanjay Kishan Kaul and A.S.Oka was hearing over the petition filed by Srinagar residents Haji Abdul Gani Khan and Mohammad Ayub Mattoo on challenging the notification issued by the Centre in March 2020 establishing the Jammu and Kashmir Delimitation Commission and a second one in March 2021 extending its term for the purpose of conducting delimitation only for Jammu and Kashmir.
The Petitioners argued that only the Election Commission under Section 60 of the 2019 Act, was empowered to conduct the delimitation exercise.
They further argued that Article 170 of the Constitution barred delimitation exercise on the basis of the 2011 census. It had to either happen on the basis of the 2001 census or await the first census after the year 2026.
The petitioners alleged that Sections 60 and 61 of the 2019 Act, which defined the role of the EC in the process of delimitation, were in contradiction to Section 62

What was the judgement by the court:

The court asked why the petitioners without challenging the source of the government’s notifications, that is Section 62(2), had confined their challenge solely to the notifications

What was government response:

The government has countered that there were two alternative mechanisms to carry out delimitation for J&K. By virtue of Sections 60 and 61, while the power to determine delimitation was conferred on the EC, Section 62(2) and 62(3) conferred powers to carry out delimitation on the Commission

Some important points of the J&K Reorganisation Act, 2019 regarding delimitation.

Sections 60 to 64 of the J&K Reorganisation Act 2019, states that the initial division of the UT of J&K into Assembly seats is the job of the EC under Section 60.
It further appears from Section 62 that any readjustment in the constituencies drawn up by the EC should be taken up by a Delimitation Commission only after the first Census done after the year 2026.

What is Delimitation:

Delimitation is the act of redrawing boundaries of Lok Sabha and Assembly constituencies to represent changes in population and is done on the basis of the preceding Census.
This exercise is carried out by a Delimitation Commission, whose orders have the force of law and cannot be questioned before any court.
Constitutional provisions:
Article 82: This provides the Parliament with the authority to enact a Delimitation Act after every Census.
Article 170: This provides for the States to get divided into territorial constituencies as per the Delimitation Act after every Census.
The Union government sets up a Delimitation Commission once the Act is in force.

What is Delimitation Commission:

It is appointed by the President of India and works in collaboration with the Election Commission of India.
Its members are a serving or retired Supreme Court judge, Chief Election Commissioner or an Election Commissioner nominated by CEC and Election Commissioners of the respective state.
Its function is to determine the number and boundaries of constituencies, to identify seats reserved for SC/ST.
It is a high power body whose orders have the force of law and cannot be called in question before any court.
Delimitation Commissions have been set up four times — 1952, 1963, 1973 and 2002 under the Acts of 1952, 1962, 1972 and 2002.