Allahabad High Court
Chandra Mani Prasad And 3 Others vs Union Of India And Another on 8 February, 2017
Bench: V.K. Shukla, Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD (AFR) Reserved on 03.02.2017 Delivered on 08.02.2017 Court No. - 21 Case :- WRIT - C No. - 3078 of 2017 Petitioner :- Chandra Mani Prasad And 3 Others Respondent :- Union Of India And Another Counsel for Petitioner :- Vivek Kumar Singh,Shri Bhagwati Prasad Singh,Vivek Srivastava Counsel for Respondent :- A.S.G.I.,Bhupendra Nath Singh Connected with Case :- WRIT - C No. - 3725 of 2017 Petitioner :- Ashutosh Shukla Respondent :- Union Of India And Another Counsel for Petitioner :- Rajeshwar Tripathi Counsel for Respondent :- A.S.G.I.,Bhupendra Nath Singh,Santosh Kumar Shukla and Case :- WRIT - C No. - 22848 of 2015 Petitioner :- Anil Kumar Singh Respondent :- U.O.I. And 2 Ors. Counsel for Petitioner :- Vinay Singh,Vivek Kumar Singh Counsel for Respondent :- A.S.G.I.,B.N. Singh,Gayan Prakash Singh,S.C. and Case :- WRIT - C No. - 3666 of 2017 Petitioner :- Ajay Kumar And Another Respondent :- Union Of India And Another Counsel for Petitioner :- Chhaya Gupta,Sujeet Kumar Counsel for Respondent :- A.S.G.I.,Bhupendra Nath Singh,Saurabh Srivastava Hon'ble V.K. Shukla,J.
Hon'ble Mrs. Sangeeta Chandra,J.
(Delivered by Hon'ble Mrs. Sangeeta Chandra, J) The dispute in this bunch of writ petitions relates to validity of the notification issued by the Election Commission of India-respondent No. 2 dated 13th January, 2014 and the Press Note dated 4th January, 2017 with regard to the reservation of Assembly Constituency No. 402 Obra and Assembly Constituency No. 403 Dudhi, both in District Sonbhadra for Scheduled Tribes and a prayer has been made for issuance of a mandamus to treat the aforesaid seats as before the notification dated 13th January, 2014 with Obra as unreserved and Dudhi as reserved for Scheduled Castes only. The petitioners allege that they are engaged in active politics and were thinking of contesting the election from these Assembly Constituencies so announced for Uttar Pradesh Vidhan Sabha on 4th January, 2017, but due to the declaration of these two constituencies as reserved for Scheduled Tribes, their nominations for election shall not be entertained and they will be illegally and arbitrarily deprived of exercise of their statutory right for contesting the elections under the Representation of People Act, 1950.
The writ petitions have been opposed by respondents and preliminary objection has been raised as to the maintainability of the writ petitions on the ground that there is a specific Constitutional bar under Article 329 of the Constitution of India, which provides that notwithstanding anything in the Constitution, the validity of any law relating to the de-limitation of constituency or allotment of seats to such constituency, made or purporting to be made under Article 327 or 328 shall not be called in question in any Court and no election, either to the House of Parliament or to the Houses of Legislatures of a State, can be called in question except by way of an election petition presented to such an authority and in such manner as may be provided for, by or under any law made by the appropriate legislature.
The challenge to the validity of the notifications issued by the Election Commission of India dated 13th January, 2014 and 4th January, 2017 would fall for consideration only if Article 329 is held not to be a bar for this Court to exercise its jurisdiction under Article 226 from considering such a challenge.
The election process for holding election to the Legislative Assembly of the State of U.P. (Vidhan Sabha) have been announced vide notification issued in this regard. The Election Schedule has been announced by the Election Commission of India on 4th January, 2017. The elections for the State of U.P. are to be held in seven phases and as per the Schedule, election for the Assembly seats for district Sonbhadra shall be held in the 7th phase with the filing of nominations on 9th February, 2017 and date of withdrawal of candidature on 20th February, 2017.
For convenience of ex-position in this judgement, we shall first consider, the Constitutional Provisions and Statutory Provisions of the Representation of People Act, 1950 (herein after referred to as R.P. Act, 1950) and Representation of People Act, 1951 (herein after referred to as R.P. Act, 1951); The De-limitation Commission Act, 2002 and De-limitation Orders 2008 issued thereunder and the action taken thereunder by the Election Commission of India vide its notification dated 13th January, 2014.
Articles 81, 82, 170 and 330 and 332 of the Constitution are as under:
"81. Composition of the House of the People (1) Subject to the provisions of Article 331 the House of the People shall consist of-
(a) not more than five hundred and thirty members chosen by direct election from territorial constituencies in the States, and
b) not more than twenty members to represent the Union territories, chosen in such manner as parliament may by law provide (2) For the purposes of sub clause (a) of clause ( 1 )
(a) there shall be allotted to each State a number of seats in the House of the People in such manner that the ratio between that number and the population of the State is, so far as practicable, the same for all States; and
(b) each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and th number of seats allotted to it is, so far as practicable, the same throughout the State:
Provided that the provisions of sub clause (a) of this clause shall not be applicable for the purpose of allotment of seats in the House of the People to any State so long as the population of that State does not exceed six millions.
(3) In this article, the expression population means the population as ascertained at the last preceding census of which the relevant figures have been published:
Provided that the reference in this clause to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be construed,-
(i) for the purposes of sub-clause (a) of clause (2) and the proviso to that clause, as a reference to the 1971 census; and
(ii) for the purposes of sub-clause (b) of clause (2) as a reference to the 2001 census.
82. Readjustment after each census- Upon the completion of each census, the allocation of seats in the House of the People to the States and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine:
Provided that such readjustment shall not affect representation in the House of the People until the dissolution of the then existing House:
Provided further that such readjustment shall take effect from such date as President may, by order, specify and until such readjustment takes effect, any election to the House may be held on the basis of the territorial constituencies existing before such readjustment:
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 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, "170. Composition of the Legislative Assemblies (1) Subject to the provisions of Article 333, the Legislative Assembly of each State shall consist of not more than five hundred, and not less than sixty, members chosen by direct election from territorial constituencies in the State (2) For the purposes of clause ( 1 ), each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the State.
Explanation.- In this clause, the expression "population" means the population as ascertained at the last preceding census of which the relevant figures have been published:
Provided that the reference in this Explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be construed as a reference to the (2001) census.
(3) Upon the completion of each census, the total number of seats in the Legislative Assembly of each State and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine:
Provided that such readjustment shall not affect representation in the Legislative Assembly until the dissolution of the then existing Assembly:
Provided further that such readjustment shall take effect from such date as the President may, by order, specify and until such readjustment takes effect, any election to the Legislative Assembly may be held on the basis of the territorial constituencies existing before such readjustment:
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 total number of seats in the Legislative Assembly of each State as readjusted on the basis of the 1971 census; and
(ii) the division of such State into territorial constituencies as may be readjusted on the basis of the 2001 census, under this clause."
"330. Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People-
(1) Seats shall be reserved in the House of the People for
(a) the Scheduled Castes;
(b) the Scheduled Tribes except the Scheduled Tribes in the autonomous districts of Assam; and
(c) the Scheduled Tribes in the autonomous districts of Assam (2) The number of seats reserved in any State or Union territory for the Scheduled Castes or the Scheduled Tribes under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State or Union territory in the House of the People as the population of the Scheduled Castes in the State or Union territory or of the Scheduled Tribes in the State or Union territory or part of the State or Union territory, as the case may be, in respect of which seats are so reserved, bears to the total population of the State or Union territory.
(3) Notwithstanding anything contained in clause (2), the number of seats reserved in the House of the People for the Scheduled Tribes in the autonomous districts of Assam shall bear to the total number of seats allotted to that State a proportion not less than the population of the Scheduled Tribes in the said autonomous districts bears to the total population of the State.
Explanation.- In this article 332, the expression population means the population as ascertained at the last preceding census of which the relevant figures have been published:
Provided that the reference in this Explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be construed as a reference to the 2001 census."
" 332. Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States (1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam, in Nagaland and in Meghalaya, in the Legislative Assembly of every State.
(2) Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the State of Assam.
(3) The number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved bears to the total population of the State.
(3A) Notwithstanding anything contained in clause (3), until the taking effect, under article 170, of the re-adjustment, on the basis of the first census after the year 2026, of the number of seats in the Legislative Assemblies of the States of Arunachal Pradesh, Meghalaya, Mizoram and Nagaland, the seats which shall be reserved for the Scheduled Tribes in the Legislative Assembly of any such State shall be,-
(a) if all the seats in the Legislative Assembly of such State in existence on the date of coming into force of the Constitution (fifty-seventh Amendment) Act, 1987 (hereafter in this clause referred to as the existing Assembly) are held by members of the Scheduled Tribes, all the seats except one;
(b) in any other case, such number of seats as bears to the total number of seats, a proportion not less than the number (as on the said date) of members belonging to the Scheduled Tribes in the existing Assembly bears to the total number of seats in existing Assembly.
(3B) Notwithstanding anything contained in clause (3), until the re-adjustment, under article 170, takes effect on the basis of the first census after the year 2026, of the number of seats in the Legislative Assembly of the State of Tripura, the seats which shall be reserved for the Scheduled Tribes in the Legislative Assembly shall be, such number of seats as bears to the total number of seats, a proportion not less than the number, as on the date of coming into force of the Constitution (Seventy-second Amendment) Act, 1992, of members belonging to the Scheduled Tribes in the Legislative Assembly in existence on the said date bears to the total number of seats i that Assembly.
(4) The number of seats reserved for an autonomous district in the legislative Assembly of the State of Assam shall bear to the total number of seats in that Assembly a proportion not less than the population of the district bears to the total population of the State.
(5) The constituencies for the seats reserved for any autonomous district of Assam shall not comprise any area outside that district (6) No person who is not a member of a Scheduled Tribe of any autonomous district of the State of Assam shall be eligible for election to the Legislative Assembly of the State from any constituency of that district."
The Representation of People Act, 1950 as per its preamble is an Act to provide for the allocation of seats and the delimitation of constituencies for the purpose of election to the House of People and Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, the process for filling seats in the Council of State to be filled by the representatives of States and Union Territories and matters connected therewith.
The relevant extract of Section 7 relating to State Legislative Assemblies is as under:
"7. Total number of seats in Legislative Assemblies and Assembly constituencies.-
(1) Subject to the provisions of sub-section (1A), (1B) and (1C), the total number of seats in the Legislative Assembly of each State specified in the Second Schedule, to be filled by persons chosen by direct election from assembly constituencies, and the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State, shall be as shown in that Schedule:
****************************** (3) The extent of each assembly constituency in all the States and Union territories except the assembly constituencies in the States of Arunachal Pradesh, Assam, Jharkhand, Manipur and Nagaland shall be as determined by the orders of the Delimitation Commission made under the provisions of the Delimitation Act, 2002 (33 of 2002) and the extent of each assembly constituency in the States of Arunachal Pradesh, Assam, Jharkhand, Manipur and Nagaland shall be as provided for in the Delimitation of Parliamentary and Assembly Constituencies Order, 2008 having regard to the provisions of Sections 10-A and 10-B of the Delimitation Act, 2002."
Under section 8, the De-limitation of Parliamentary and Assembly Constituencies Orders are issued, which is quoted as under:
"8 Consolidation of delimitation orders. --
(1) Having regard to all the orders referred to in sub-section (5) of section 4 and sub-section (3) of section 7 relating to the delimitation of parliamentary and assembly constituencies in all States and Union Territories, except the States of Arunachal Pradesh, Assam, Jharkhand, Manipur and Nagaland, made by the Delimitation Commission and published in the Official Gazette, the Election Commission shall--
(a) after making such amendments as appear to it to be necessary for bringing up-to-date the description of the extent of the parliamentary and assembly constituencies as given in such orders, without, however, altering the extent of any such constituency;
(b) after taking into account the provisions of the Delimitation of Parliamentary and Assembly Constituencies Order, 1976, as made applicable pursuant to the orders made by the President under section 10A of the Delimitation Act, 2002 (33 of 2002) relating to delimitation of parliamentary and assembly constituencies in the States of Arunachal Pradesh, Assam, Manipur and Nagaland, and the provisions of section 10B of the said Act relating to delimitation of parliamentary and assembly constituencies in the State of Jharkhand, consolidate all such orders into one single order to be known as the Delimitation of Parliamentary and Assembly Constituencies Order, 2008 and shall send authentic copies of that Order to the Central Government and to the Government of each State having a Legislative Assembly; and thereupon that Order shall supersede all the orders referred to in sub-section (5) of section 4 and sub-section (3) of section 7 and shall have the force of law and shall not be called in question in any court.
(2) As soon as may be, after the said Order is received by the Central Government or by the Government of a State, that Government shall cause it to be laid before the House of the People or, as the case may be, the Legislative Assembly of the State.
(3) The consolidation under sub-section (1) of the orders referred to in sub-section (5) of section 4, or as the case may be, sub-section (3) of section 7 shall not, as provided in sub-section (5) of section 10 of the Delimitation Act, 2002 (33 of 2002), affect the representation in, and the territorial constituencies of, the House of the People or the Legislative Assembly of the State existing on the date of publication in the Gazette of India of any such order or orders as may be relevant."
Under section 9, Power of Election Commission to maintain De-limitation Order upto date is mentioned as under:
"9 Power of Election Commission to maintain Delimitation Order up-to-date. --
(1) The Election Commission may, from time to time, by notification published in the Gazette of India and in the Official Gazette of the State concerned,--
(a) correct any printing mistake in the Delimitation of Parliamentary and Assembly Constituencies Order, 2008 or any error arising therein from inadvertent slip or omission;
(aa) make such amendments in the Delimitation of Parliamentary and Assembly Constituencies Order, 2008 as appear to it to be necessary or expedient for consolidating with that Order any notification or order relating to delimitation of Parliamentary or assembly constituencies (including reservation of seats for the Scheduled Castes or the Scheduled Tribes in such constituencies) issued under section 8A of this Act or any other Central Act;
(b) where the boundaries or name of any district or any territorial division mentioned in the Order are or is altered, make such amendments as appear to it to be necessary or expedient for bringing the Order up-to-date.
(2) Every notification under this section shall be laid as soon as may be after it is issued, before the House of the People and the Legislative Assembly to the State concerned.
The Representation of People Act, 1951 as per its Preamble is an Act to provide for conduct of elections to the Houses of Parliament and to the House or Houses of Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections, and the decision of doubts and disputes arising out of or in connection with such elections.
Under section 100, the grounds for declaring an election to be void have been enumerated thus:
"100. Grounds for declaring election to be void.--
(1) Subject to the provisions of sub-section (2) if the High Court is of opinion--
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfied--
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void."
The De-limitation Act, 2002 as per its Preamble is an Act to provide for the allocation of seats in the House of People, the total number of seats in the Legislative Assembly of each State, the division of each State and each Union Territory having a Legislative Assembly into Territorial Constituency for election to the House of People and Legislative Assembly of the State and Union Territory and for matters connected therewith.
Under section 3 of the Act of 2002, it is the duty of the Central Government to constitute the De-limitation Commission and duties of the Commission are provided under Section 4.
Section 4 also relates to readjustment to be made on the basis of census figures as determined at census held in the year 1971 by the De-limitation Commission constituted under section 3 and its relevant extract is as under:
"4. Duties of the Commission.--(1) The readjustment made, on the basis of the census figures as ascertained at the census held in the year 1971 by the Delimitation Commission constituted under section 3 of the Delimitation Act, 1972 (76 of 1972), of the allocation of seats in the House of the People to the several States and the total number of seats in the Legislative Assembly of each State shall be deemed to be the readjustment made by the Commission for the purposes of this Act.
(2) Subject to the provisions of sub-section (1) and any other law for the time being in force, the Commission shall readjust the division of each State into territorial constituencies for the purpose of elections to the House of the People and to the State Legislative Assembly on the basis of the census figures as ascertained at the census held in the year 2001:
Provided that where on such readjustment only one seat is allocated in the House of the People to a State, the whole of that State shall form one territorial constituency for the purpose of elections to the House of the People from that State."
"8. Readjustment of number of seats.--
The Commission shall, having regard to the provisions of articles 81, 170, 330 and 332, and also, in relation to the Union territories, except National Capital Territory of Delhi, sections 3 and 39 of the Government of Union Territories Act, 1963 (20 of 1963) and in relation to the National Capital Territory of Delhi sub-clause (b) of clause (2) of article 239AA, by order, determine,--
(a) on the basis of the census figures as ascertained at the census held in the year 1971 and subject to the provisions of section 4, the number of seats in the House of the People to be allocated to each State and determine on the basis of the census figures as ascertained at the census held in the year 2001 the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State; and
(b) on the basis of the census figures as ascertained at the census held in the year 1971 and subject to the provisions of section 4, the total number of seats to be assigned to the Legislative Assembly of each State and determine on the basis of the census figures as ascertained at the census held in the year 2001 the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State:
Provided that the total number of seats assigned to the Legislative Assembly of any State under clause (b) shall be an integral multiple of the number of seats in the House of the People allocated to that State under clause (a)."
"9. Delimitation of constituencies.-- (1) The Commission shall, in the manner herein provided, then, distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State as readjusted on the basis of 1971 census to single-member territorial constituencies and delimit them on the basis of the census figures as ascertained, at the census held in the year 2001, having regard to the provisions of the Constitution, the provisions of the Act specified in section 8 and the following provisions, namely: --
(a) all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries of administrative units, facilities of communication and public convenience;
(b) every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency;
(c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large; and
(d) constituencies in which seats are reserved for the Scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total is the largest.
(2) The Commission shall --
(a) publish its proposals for the delimitation of constituencies, together with the dissenting proposals, if any, of any associate member who desires publication thereof, in the Gazette of India and in the Official Gazettes of all the States concerned and also in such other manner as it thinks fit;
(b) specify a date on or after which the proposals shall be further considered by it;
(c) consider all objections and suggestions which may have been received by it before the date so specified, and for the purpose of such consideration, hold one or more public sittings at such place or places in each State as it thinks fit; and
(d) thereafter by one or more orders determine --
(i) the delimitation of parliamentary constituencies; and
(ii) the delimitation of assembly constituencies, of each State.
"10. Publication of orders and their date of operation.--
(1) The Commission shall cause each of its orders made under section 8 or section 9 to be published in the Gazette of India and in the Official Gazettes of the States concerned and simultaneously cause such orders to be published at least in two vernacular newspapers and publicize on radio, television and other possible media available to the public and after such publication in the Official Gazettes of the States concerned, every District Election Officer shall cause to be affixed, the Gazette version of such orders relating to the area under his jurisdiction, on a conspicuous part of his office for public notice.
(2) Upon publication in the Gazette of India, every such order shall have the force of law and shall not be called in question in any court.
(3) As soon as may be after such publication, every such order shall be laid before the House of the People and the Legislative Assemblies of the States concerned.
(4) Subject to the provisions of sub-section (5) the readjustment of representation of the several territorial constituencies in the House of the People or in the Legislative Assembly of a State and the delimitation of those constituencies provided for in any such order shall apply in relation to every election to the House or to the Assembly, as the case may be, held after the publication in the Gazette of India of that order and shall so apply in supersession of the provisions relating to such representation and delimitation contained in any other law for the time being in force or any order or notification issued under such law in so far as such representation and delimitation are inconsistent with the provisions of this Act.
Provided that nothing in this sub-section shall apply to the delimitation orders published in relation to the state of Jharkhand.
(5 ) Nothing in this section shall affect the representation in the House of the People or in the Legislative Assembly of a State until the dissolution of the House or of the Assembly, as the case may be, existing on the date of publication in the Gazette of India of the final order or orders of the Commission relating to the delimitation of parliamentary constituencies or, as the case may be, of the assembly constituencies of that State and any bye-election to fill any vacancy in such House or in any such Assembly shall be held on the basis of the provisions of the laws and orders superseded by sub-section (4 ) as if the said provisions had not been superseded.
(6) The Commission shall endeavour to complete and publish each of its orders referred to in sub-section (1 ) in the manner provided in that sub-section, 2 within a period not later than 31st day of July, 2008 under section 3."
"11. Power to maintain delimitation orders up-to-date.--
(1) The Election Commission may, from time to time, by notification in the Gazette of India and in the Official Gazette of the State concerned, --
(a) correct any printing mistake in any of the orders made by the Commission under section 9 or any error arising therein from an inadvertent slip or omission; and
(b) where the boundaries or name of any district or any territorial division mentioned in any of the said orders are or is altered, make such amendments as appear to it to be necessary or expedient for bringing the orders up-to-date, so, however, that the boundaries or areas or extent of any constituency shall not be changed by any such notification.
(2) Every notification under this section shall be laid, as soon as may be after it is issued, before the House of the People and the Legislative Assembly of the State concerned."
Having enumerated the relevant statutory provisions we will now deal with the submissions made on behalf of the parties.
Shri Bhagwati Prasad Singh, learned Senior Advocate assisted by Shri Vivek Srivastava and Shri Vivek Kumar Singh, learned counsel for the petitioner-Chandra Mani Prasad and others have submitted that respondent No. 1 had promulgated the Readjustment of Representation of Scheduled Castes and Scheduled Tribes in Parliamentary and Assembly Constituencies Ordinance on 30th of January, 2013 and in pursuance thereof a Bill was introduced in the Council of States to replace the ordinance on 26th of February, 2013, which Bill after being referred to the Standing Committee, was recommended for being passed on 2nd May, 2013, but could not actually be passed in the Council of States and the Ordinance ceased to operate on 4th April, 2013. The Second Ordinance was thereafter promulgated by the President on 5h June, 2013, which was replaced by a Bill of the same name in the Council of States, but the same could not be passed and the Second Ordinance also ceased to operate on 15th September, 2003. Thereafter, the Third Ordinance was promulgated by the President on 27th September, 2013, which had a deeming clause, which said that the same shall be deemed to have been enforced on 30th January, 2013. The said Ordinance provided for amongst other things, readjustment of seats in Legislative Assembly, insofar as such readjustment was necessitated by inclusion in, or exclusion from, the list of Scheduled Castes and Scheduled Tribes Order as amended by Act No. 10 of 2003.
Since the earlier Ordinances on the basis of which the whole re-adjustment exercise has been done by the Election Commission of India had lapsed by the time the notification dated 13 January 2014 was issued (the 3rd Ordinance dated 27 September 2013 having been allowed to lapse without Bill being introduced and passed in the Parliament) the notification dated 13 January 2014 could not now be allowed to take effect. The earlier De-limitation order 2008 issued by the Election Commission of India had shown no reservation for STs and in the elections held for Lok Sabha in May 2014 also the notification dated 13 January 2014 had not been given effect to. Consequently, the Press note issued on 4 January 2017 reserving Constituency No. 402 Obra and Constituency No. 403 Dudhi for ST also cannot stand and deserved to be quashed.
Sri U.N. Sharma, Senior Advocate as well as Sri Ashok Khare, Senior Advocate assisted by Ms. Chhaya Gupta have adopted the same arguments.
Shri. Prateek Rai holding brief of Dr. Rajeshwar Tripathi, learned counsel for the petitioner-Ashutosh Shukla in Writ Petition No. 37525 of 2017 has supplemented the arguments made on behalf of the petitioners by the learned Senior Counsel very lucidly and effectively. He has basically made the following submissions:- Firstly, that the respondent no.1 had promulgated Ordinance No. 2 of 2013 on 30th January 2013 on the basis of which re-adjustment in the territorial extent and reservation of different Assembly Constituencies consequent to the changes in the list of SC & ST had lapsed on 4 April 2014. The second Ordinance i.e. Ordinance No. 6 of 2013 for the same purpose promulgated on 5th June 2013 had lapsed on 15th September 2013. The Third Ordinance for the same purpose namely, Ordinance No.10 of 2013 promulgated on 27th September 2013 also lapsed having not been replaced by any Act of Parliament. So any action done under the Ordinances which did not mature into an Act of Parliament where rendered void and liable to be ignored.
Secondly, under Section 7 of Representation of People Act, the total number of seats in the Legislative Assemblies of each State is specified in the Second Schedule and the number of seats reserved for Schedule Castes/Schedule Tribes of State having being shown in the Second Schedule as '85' for Schedule Castes and 'none' for Schedule Tribes under the De-limitation Order 2008, the same could not have been amended by the Respondent No.2 in exercise of powers under Section-4(1) of the Ordinance which was void ab initio.
Thirdly, the word "population" under Explanation to Article 332 (3) has been defined as population ascertained at the last preceding census of which the relevant figures have been published and which shall be construed as reference to 2001 Census. This word "population" means the population of Schedule Caste and Schedule Tribes as defined under Articles 341 and 342 of the Constitution at the time of 2001 Census alone. On the other hand, under Section 3 of the Ordinance it has been provided that after commencement of Ordinance the population at the last census of Schedule Caste or Schedule Tribes in each State shall be ascertained or estimated by the Census Commissioner, and where, by reason of amendment in the Schedule Caste Orders and the Schedule Tribe Orders after the last census and upto 31st May 2012, the population of such communities as at the last Census (2001 Census) is varied in the State, the Census Commissioner shall ascertain, as on the first date of March 2001, the population of such community so varied, which shall then be used to determine the proportion of such population of each community respectively to the total population of the State in the last Census. This militates against the provisions of the Constitution as it takes into account the number of persons of reserved community, in the Census of 2011 and thereafter relates it back and makes a change in population retrospectively, thus, affecting the proportion of such population to the total population of the State in the last Census of 2001.
The last submission made by Sri. Prateek Rai is based mainly upon the judgment rendered by the Constitution Bench in the case of Krishna Kumar Singh and another vs. State of Bihar and another, Civil Appeal No.5875 of 1994 decided on 2 January 2017. In the said case the Seven judges' quorum had in its majority decision held that the constitutional fiction attributing to Ordinance the same force and effect as a law enacted by the legislature comes underway only if the Ordinance has been validly promulgated after complying with the requirements of Articles 123 and 213. Power to promulgate Ordinances being subject to legislative control, the requirement of laying an Ordinance before the legislature is mandatory and a constitutional obligation cast upon the Government and only when the will of the legislature, (expressed either in approval or disapproval of such Ordinance) is expressed, can it be said that Ordinance making power has been validly exercised. Re-promulgation of an Ordinance after its lapse is a fraud on the Constitution and a subversion of democratic legislative processes, and therefore since Ordinance No.2 of 2013 promulgated on 30h January 2013 having been allowed to lapse, Ordinance No. 6 of 2013 and Ordinance No. 10 of 2013 could not have been repromulgated thereafter. Since Ordinance No. 10 of 2013 did not mature into an Act of Parliament and was also allowed to lapse, any notification issued thereunder, viz. notification dated 13th January 2014 issued by the Election Commission of India amending the delimitation of Constituencies Order 2008 was void.
Learned counsel for the respondent No.1 Union of India, Sri Ashok Mehta, Senior Advocate assisted by Sri Saurabh Srivastava, Advocate, argued that in so far as presumption against the validity of Ordinance No.2 of 2013, followed by Ordinance No.6 of 2013 and Ordinance No.10 of 2013 are concerned, none of these Ordinances have been challenged specifically, nor any declaration has come from any competent Court declaring them to be void. Unless such a declaration on a specific prayer being made in this regard by the petitioners after successfully challenging the validity of Ordinance is made by the Court, no action taken in exercise of powers given thereunder could be said to be invalid. Thus, to us seems also to be the correct position in law.
Sri Bhupendra Nath Singh, counsel appearing for the respondent No. 2, has on the other hand submitted that a reference being made repeatedly to the need for issuance of a Presidential Order in the light of provisions of Article 82 or Article 170 is misconceived. Only when delimitation affecting territorial extent of Parliament or Assembly Constituencies or affecting number of seats allocated to each State in both Houses of Parliament or in Houses of Legislature of each State is affected, will there be any necessity for a Presidential Order to be issued bringing into effect such Re-adjustment.
Sri Yogesh Agarwal, Advocate, has entered appearance on behalf of intervenor and submitted that challenge made should not at all be entertained under Article 329 of Constitution of India, exercise undertaken is valid exercise persuant to the directives of the Apex Court.
Analysis Having considered the statutory provisions and the submissions made on behalf of all the parties, we have zeroed in on two questions which need to be decided in the bunch of writ petitions.
(a) whether the writ petitions can be entertained by this Court when the election process is well underway or whether the bar created by the Constitution under Article 329 would preclude any consideration on merit of the pleadings at this stage?
(b) whether proceeding on an assumption that the exercise undertaken by the Election Commission of India of reservation and allotment of seats being an exercise of powers under a non-existent Ordinance would make it subject of judicial review as the action of the Election Commission of India would not then be protected by the Constitutional bar of Article 329?
The answer to the aforesaid questions shall be attempted to be given by us by first dealing with the background facts which led to the issuance of the notification dated 13 January 2014 and the Press note dated 4 January 2017 by the Election Commission.
The De-limitation Order, 2008 was made by the Respondent No. 2 in pursuance of and in exercise of power conferred by section 8(1) of the Representation of Peoples Act, 1950 and it relates to De-limitation of Parliamentary and Assembly Constituencies made by the De-limitation Commission constituted under section 3 of the De-limitation Act, 2002, consolidated into one Order. The Schedule II of the De-limitation Order 2008 shows the number of seats assigned to the Legislative Assembly of each State and the number of seats reserved for Scheduled Castes and Scheduled Tribes in such Assembly.
Schedule III to Schedule XXXII of the De-limitation Order, 2008 show the names of Assembly Constituencies into which each State is divided, and against the name of each such constituency the indication of the words "SC" or the words "ST" shown in parenthesis, shows that such constituency is reserved for Scheduled Castes or Scheduled Tribes.
Under section 9 (1) (aa) of Representation of People Act, 1950, respondent No. 2 can make such an amendment to the De-limitation Order, 2008, as appear to it to be necessary or expedient for consolidating in that order all notifications or orders relating to De-limitation of Assembly Constituency, including reservation of seats for Scheduled Castes and Scheduled Tribes, issued either under section 8 A of the Representation of People Act, 1950 or in exercise of powers under De-limitation Act, 2002, (which is also a Central Act). Respondent No. 2 can thus exercise the power to amend the De-limitation Order to change the reservation status of any Assembly Constituency.
It so happened that on 7th January, 2003, the Scheduled Castes and Scheduled Tribes (Amendment) Act, 2002 was enacted by Parliament, which brought about certain changes in the list of Scheduled Castes and Scheduled Tribes. For the States of Andra Pradesh, Arunachal Pradesh, Assam, Bihar, Goa, Gujarat, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Mizoram, Orrisa, Sikkim, Tamil Nadu, Tripura, Uttar Pradesh and West Bengal, which proposed to amend the Scheduled Castes Orders made by the President under Article 341 of the Constitution and the Scheduled Tribes Order, 1967 made by the President under Article 342 of the Constitution.
In the first Schedule, the Scheduled Castes Order was amended and under the second Schedule, Scheduled Tribes Orders were amended. Some of the Communities, which were belonging to Scheduled Castes were changed and included within the ambit of Scheduled Tribes. The Communities shown from serial Nos. 1 to 5 in the list were treated as Scheduled Tribes even earlier, but the Communities from serial Nos. 6 to 15 are new addition to the fold of Scheduled Tribes. In district Sonbhadra, more particularly Gond, Dhuria, Nayak, Ojha, Pathari, Raj Gond, Kharwar, Khairwar Prehiya, Baiga, Pankha, Panika, Agariya, Patari, Chero, Bhuiya, Bhuinya having been included in the list of Scheduled Tribes for district Sonbhadra.
In consequence of the publication of revised census figures for 2001 Writ Petition (Civil ) No. 540 of 2011 (Virendra Pratap & Another vs Union of India and others) was filed before the Supreme Court praying for a direction to the Election Commission to consider the case of Scheduled Tribes and to take appropriate steps for their representation in Parliament as well as in State Assembly. The Supreme Court vide its various orders passed in the aforesaid writ petition had asked the learned counsel for the Election Commission of India to indicate as to how much time it would take for completion of exercise for bringing about proportionate representation in the ensuing elections and whether it would be possible before the date of the election (at that time Lok Sabha elections of May, 2012 were imminent). On the basis of instructions, learned counsel had submitted that the entire exercise will take about three months and the learned Attorney General had submitted that it would involve current figures to be taken of reserved population as a percentage to the total population of State which was to be made available by the Registrar General of India of Census Operations. The Hon'ble Supreme Court while disposing of the writ petition on 10.01.2012 observed as under :
"7. Having regard to the submissions made, we see no reason to keep this writ petition pending since we agree with the submissions made by Mr. Narasimhan, that having regard to the constitutional obligations, as contained Articles 332, 330 and 243 D of the Constitution of India, the Scheduled Tribes have a right to be represented in proportion to their numbers in the different constituencies in the State.
8. Accordingly, we dispose of the petition by directing the Election Commission of India, to consider the case of the Scheduled Tribes, as indicated in the writ petition and to take appropriate steps for their representation in the Lower Houses, both in the Parliament, as well as in the State Assemblies in accordance with provisions of the Constitution. Petitioners willbe at liberty to approach Election Commission of India and Election Commission of India may itself also take figures from the Registrar General, as suggested by the learned Attorney General and, thereafter, proceed to take steps in accordance with the provisions of the Constitution for representation of the Scheduled Tribes population.
The entire exercise undertaken by the Election Commission of India after issuance of Registrar General of India's Census figures of India 2001 has been mentioned in great detail in counter affidavit filed on behalf of newly impleaded respondent no.3 - Virendra Pratap Singh in Writ Petition No. 3078 of 2017 who is represented by Sri Yogesh Agarwal, Advocate.
The notification inviting objections and suggestions from the public published in Daily Newspaper 'Dainik Jagran' and widely publicized through Commission's website, Radio, TV and other media of mass communication dated 5 December 2013 followed by public hearings/ public sittings on 26 December 2013 at Varanasi, 30 December 2013 at Saharanpur and 3rd January 2014 at Jhansi resulted in the Commission deciding to reserve Constituency No. 402 Obra and Constituency No. 403 Dudhi for Scheduled Tribes in the Legislative Assembly of State of U.P. In the counter affidavit filed by newly impleaded respondent no.3, the notice published by respondent no.2 dated 5 December 2013 alongwith draft working papers with necessary details regarding district wise 2001 revised SC/ST's population data as per 2001 census proposed changes and for Assembly seats for each district of the State of U.P. has been filed.
The Registrar General of India on the basis of revised population figure for Scheduled Castes and Scheduled Tribes in respect of Uttar Pradesh as per the census of 2001, published a notification in the Gazette of India on 1.4.2013. The population figures as mentioned in the said notification dated 22nd March, 2013 show that for State of U.P., the total population of Scheduled Castes is 34590975 ( i.e. three crore forty five lac ninety thousand nine hundred seventy five) and the total population of Scheduled Tribes is 665365 (i.e. six lac sixty five thousand three hundred sixty five) out of which the population figures for Constituency No. 402, Obra is 67422, which is 18.93% of the total population and Constituency No. 403 Dudhi is 1,37,803 which is 36.42% of the total Population of the Constituency. The Scheduled Castes population of Obra and Dudhi were proportionately reduced.
Consequently, in pursuance of the said exercise amendments were made to Schedule-II and Schedule-XXVIII to the De-limitation of Parliamentary and Assembly Constituency Order 2008. In Schedule-II against the existing entries at Serial No. 27 relating to State of U.P. the number of Constituencies reserved for Schedule Caste was reduced to 84, and instead of no Constituencies being reserved for Schedule Tribes, now two Constituencies were shown to be reserved for Scheduled Tribes. Similarly, in Schedule No. XXVIII in para 8 relating to Assembly Constituencies in the State of U.P. against the existing entry at Serial No. 27 Constituency No. 402 Obra was be shown as reserved for Scheduled Tribes and against existing entry for Constituency No. 403 Dudhi, earlier reserved for Scheduled Caste, was now shown as reserved for Scheduled Tribes.
The exercise of delimitation of Territorial Constituencies and re-adjustment of seats on the basis of population figures determined in 2001 Census is a completely different exercise from the exercise of Reservation and Allotment of seats undertaken by the Election Commission of India in exercise of its powers under Articles 324 and 327 of the Constitution of India.
Under Article 324, the power for superintendence, direction and control of elections has been vested in Election Commission of India and under Article 327, subject to the provisions of Constitution, the Parliament may from time to time by law make a provision with respect to all matters relating to, or, in connection with elections to the either House of Parliament or to the Houses of Legislature of a State, including law relating to preparation of electoral rolls, delimitation of Constituencies and all other matters necessary for securing due constitution of the House or Houses.
The Parliament has made Representation of People Act 1950 and Representation of People Act 1951 in exercise of powers under Article 327 and has given the Election Commission ample powers under the Delimitation Act for delimitation of constituencies. In exercise of powers granted to it by the Constitution and by the Parliament, the Election Commission of India has issued notification on 13th January 2014 and now, since election notification has been issued and election process is going on since 4th January 2017, the Constitutional Bar to interference by Court's in electoral matters under Article 329 of the Constitution would come into play. Article 329 is in two parts. Sub-Clause (a) says that notwithstanding anything in the Constitution, the validity of any law relating to delimitation of the constituencies or the allotment of seats to such constituencies, made or purported to be made under Article 327 or Article 328, shall not be called into question strength in any Court.
As per Sub-Clause (b), no election to either House of Parliament or to Houses of Legislature of a State shall be called into question except by way of an election petition presented to such authority and in such manner as may be provided by law made by appropriate legislature.
Under the Representation of People Act 1951 under Section 100, grounds for declaring election to be void have been enumerated by the Parliament. An election petition can be filed before the High Court and the election of a returned candidate can be declared void by the High Court on grounds given under sub-clause (d) of sub-section (1) of Section 100. Election of a candidate can be set aside if the same has been materially affected by any non-compliance with the provisions of the Constitution or of the Representation of People Act or of any Rules or Orders made under Representation of People Act. The challenge made by the petitioners to the notification dated 13 January 2014 and the Press Note dated 4 January 2017, making changes in the De-limitation order 2008 and reserving Constituency No. 402 Obra and Constituency No. 403 Dudhi for Scheduled Tribes has been made by the petitioners mainly alleging the action to be in violation of the Constitution of the Representation of People Act. This ground being available even for an election petition, this Court should desist from exercising its extra-ordinary jurisdiction under Article 226 of the Constitution, specially when election process is underway.
Having considered the rival submissions of the parties and the Constitutional and Statutory provisions mentioned herein above, it is clear that the notification dated 13 January 2014 has been issued by the Election Commission of India amending the Second Schedule to the De-limitation Order 2008, in exercise of its powers granted under Ordinance No. 10 of 2013. These notifications have been made purportedly, in exercise of power under Article 327 of the Constitution The Ordinance No. 10 of 2013 promulgated under Article 123 of the Constitution has been made in exercise of a legislative power vested in the President of India, although under supervening control of the Parliament of India. The delimitation of constituencies having been done under an Act passed by the Parliament and the readjustment being done of allocation of seats and reservation thereof by the Election Commission of India having been done in exercise of its powers under Article 324 of the Constitution for Superintendence, direction and control of elections, the Constitutional bar under Article 329 would certainly come in our way in showing any interference at this stage in the electoral process.
The leading case on the issue of Article 329 is N.P. Ponnuswami Vs. Returning Officer, AIR 1952 SC 64 which deals with scope, amplitude, rationale and limitation of Article 329. Its ratio has been constantly followed by the Supreme Court in several judgments thereafter. The ambit and spirit of the bar imposed by the Article 329 was explained by Hon'ble Justice Fazl Ali (as he then was) when he observed :-
"......It does not require much argument to show that in a country with a democratic constitution in which the legislatures have to play a very important role, it will lead to serious consequences, if the elections are unduly protracted or obstructed.............".
Justice Krishna Iyyer in Mohinder Singh Gill Vs. Chief Election Commissioner 1978 1 SCC 405 has quoted Justice Fazl Ali and observed thus:
"Having thus explained the raison d'etre of the provision, the Court proceeded to interpret the concept of election in the scheme of Part XV of the Constitution and the Representation ion of the People Act, 1951. Articles 327 and 328 take care of the act of laws and rules making provisions with respect to all matters relating to or in connection with, elections.' Election disputes were also to be provided for by laws made under Article 327. The Court emphasised that Part XV of the Constitution was really a code in itself, providing the entire ground work for enacting the appropriate laws and setting up suitable machinery for the conduct of elections."
The Hon'ble Supreme Court with respect to the delimitation specifically has in the case of Meghraj Kothari Vs. Delimitation Commissioner & others, AIR 1967 SC 669 observed:-
8.It was argued before us that the Delimitation Commission Act,1962, was not passed by Parliament under Article 327, but under Article 82 and as such courts of law are not precluded from entertaining the question as to the validity of a notification under the Delimitation Commission Act because of the opening words of Art. 329. Article 82, however, merely envisages that upon the completion of each census the allocation of seats in the House of the People and the division of each State' into territorial constituencies may have to be readjusted. It is Art. 327 which enjoins upon Parliament to make provision by law from time to time with respect to all matters relating to or in connection with elections to either House of Parliament .... delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
9. The preamble to the Delimitation Commission Act shows that it is an Act to provide for the readjustment of the allocation of seats in the House of the People to the States, the total number of seats in the Legislative Assembly of each State, the division of each State into territorial constituencies for elections to the House of the People and Legislative Assemblies of the States and for matters connected therewith Article 82 only foreshadows that readjustment may be necessary upon completion of each census, but Art' 327 gives power to Parliament to make elaborate provision for such readjustment including delimitation of constituencies and all other matters connected therewith as also elections to either House of Parliament. Section 3 of the Delimitation Commission Act (hereinafter referred to the Act) enjoins upon the Central Government to constitute a Commission to be called the Delimitation Commission as soon as may be after the commencement of the Act. Section 4 of the Act provides that it is the duty of the Commission to readjust on the basis of the latest census figures -the allocation of seats in the House of the People to the several States...... and the division of each State into territorial, constituencies for the purpose of elections to the House of the People. Section 8 of the Act makes it obligatory on the Commission to ,'determine by order, on the basis of the latest census figures, and -.having regard to the provisions of Arts. 81, 170, 330 and 332, the number of seats in the House of the People to be allocated to each State and the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State as also the total number of seats to be assigned to the Legislative Assembly of each State and the number of seats, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State. The delimitation of the constituencies is provided for in Section 9, sub-s. (1) of the Act which reads:-
"The Commission shall, in the manner herein provided, then distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State to single-member territorial constituencies and delimit them on the basis of the latest census figures, having regard to the provisions of the Constitution and to the following provisions, namely:
(a) all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries of administrative units, facilities of communication and public convenience;
(b) every assembly constituency shall be so delimited as to fall wholly within one parliamentary constituency;
(c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large; and
(d) constituencies in which seats are reserved for the scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total is the largest."
Under sub-s.(2) of the section the Commission shall publish its proposals for the delimitation of the constituencies together with the dissenting proposals, if any, of an associate member, specify a date on or after which the proposals will be further considered and consider all objections and suggestions which may have been received by it before the day so specified. Thereafter its duty is by one or more orders to determine the delimitation of Parliamentary constituencies and the delimitation of assembly constituencies of each State. Publicity is to be given to the orders of the Commission under Section 10(1) of the Act. Sub-section (1) prescribes that each of its orders made under Section 8 or 9 is to be published in the Gazette of India and the official gazettes of the States concerned. Sub-section (3) provides that as soon as may be after such publication every such order shall be laid before the House of the People and the Legislative Assemblies of the States concerned.
10. The legal effect of the orders is given in sub-ss. (2) and (4) of' Section 10 of the Act. Under sub-s. (2) "upon publication in the Gazette of India, every such order shall have the force of law and shall not be called in question in any court". Under sub-s. (4) (omitting the irrelevant portion) the readjustment of representation of the several territorial constituencies in the House of the People or in the Legislative Assembly of a State and the delimitation of those constituencies provided for in any such order shall apply in relation to every election to the House or to the Assembly, as the case may be, held after the publication in the Gazette of India of that order and shall so apply in supersession of the provisions relating to such representation and delimitation contained in the Representation of the People Act, 1950, and the Delimitation of' Parliamentary and Assembly Constituencies Order, 1961.
11. It will be noted from the above that it was the intention of the, legislature that every order under ss. 8 and 9 after publication is to have the force of law' and not to be made the subject matter of controversy in any court. In other words, Parliament by enacting Section 10(2) wanted to make it clear that orders passed under ss 8 and 9 were to be treated as having the binding force of law and not mere administrative directions. This is further reinforced by sub-s.of s.10 according to which the readjustment of representations of the several territorial constituencies in the House of the People and the delimitation of those constituencies provided for in any such order (i.e. under s. 8 or s. 9) was to apply in relation to every election to the House held after the publication of the order in the Gazette of India and these provisions contained in the order were to supersede all provisions relating to such representation and delimitation contained in the Representation of the People Act, 1950 and the Delimitation of Parliamentary and Assembly Constituencies Order, 1961. In effect, this means the complete effacement of all provisions of this nature which were in force before the passing of the orders under ss. 8 and 9 and only such orders were to hold the field. Therefore although the impugned notification was not a statute passed by Parliament, it was a law relating to the delimitation of constituencies or the allotment of seats to such constituencies made under Art. 327 of the Constitution."
In the above noted case of Meghraj Kothari, parliamentary constituency of Ujjain which was unreserved earlier, had been declared as reserved and a challenge was made by a prospective candidate to such reservation before the High Court of Madhya Pradesh which dismissed the writ petition summarily and consequently an appeal was made to the Supreme Court which was referred it to the Constitution Bench and the judgment above cited was rendered thereafter. The judgment in the case of Meghraj Kothari (supra) completely covers the issue of whether challenge can be made to orders/notifications issued by the Election Commission of India in exercise of its powers under the Delimitation Act.
However, we also rely upon several other judgments which deal with similar issue, a few of them are being named thus:
(i) Mohinder Singh Gill & another Vs. Chief Election Commissioner 1978 (1) SCC 405;
(ii) Lakshmi Charan Sen Vs. A.K. M. Hassan Uzzama, 1985 (4) SCC 689;
(iii) State of U.P. Vs. Pradhan Sangh Kshetra Samiti AIR 1995 SC 1512;
(iv) Anugrah Narain Singh and another Vs. State of U.P. and others (6) SCC 303; and
(v) Manda Jagannath Vs. K.S.Rathnam 2004 (7) SCC 492.
In the case of K. Krishnamurthy Vs. Union of India 2010 (7) SCC the Supreme Court was considering a plea made by the counsel for reconsideration of the precedents wherein the rights of political participation have been characterised as statutory rights only and has observed as under:-
"77.While the exercise of electoral franchise is an essential component of a liberal democracy, it is a well-settled principle in Indian law, that the right to vote and contest elections does not have the status of fundamental rights. Instead, they are in the nature of legal rights which can be controlled through legislative means. On this point, we can refer to the following observations made by R.M. Sahai, J. in Mohan Lal Tripathi v. District Magistrate, Rai Bareilly, (1992) 4 SCC 80, para 2 : (SCC pp. 84-85) "2. Democracy is a concept, a political philosophy, an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a 'fundamental right' nor a 'common law right' but a special right created by the statutes, or a 'political right' or 'privilege' and not a 'natural', 'absolute' or 'vested right'. Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. Right to remove an elected representative, too, must stem out of the statute as 'in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers'. Its existence or validity can be decided on the provision of the Act and not, as a matter of policy."
78. In this respect, it may be noticed that the Constitution empowers the Election Commission of India to prepare electoral rolls for the purpose of identifying the eligible voters in elections for the Lok Sabha and the Vidhan Sabhas. This suggests that the right to vote is not an inherent right and it cannot be claimed in an abstract sense. Furthermore, the Representation of People Act, 1951 gives effect to the Constitutional guidance on the eligibility of persons to contest elections. This includes grounds that render persons ineligible from contesting elections such as that of a person not being a citizen of India, a person being of unsound mind, insolvency and the holding of an `office of profit' under the executive among others. It will suffice to say that there is no inherent right to contest elections since there are explicit legislative controls over the same.
79. The petitioners have asked us to reconsider the precedents wherein the rights of political participation have been characterised as statutory rights. It has been argued that in view of the standard of reasonableness, fairness and non-discrimination required of governmental action under Article 21 of the Constitution, there is a case for invalidating the restrictions that have been placed on these rights as a consequence of reservations in local self-government. We do not agree with this contention.
80. In this case, we are dealing with an affirmative action measure and hence the test of proportionality is a far more appropriate standard for exercising judicial review. It cannot be denied that the reservation of chairperson posts in favour of candidates belonging to the Scheduled Castes, Scheduled Tribes and women does restrict the rights of political participation of persons from the unreserved categories to a certain extent. However, we feel that the test of reasonable classification is met in view of the legitimate governmental objective of safeguarding the interests of weaker sections by ensuring their adequate representation as well as empowerment in local self-government institutions. The position has been eloquently explained in the respondents' submissions, wherein it has been stated that `the asymmetries of power require that the Chairperson should belong to the disadvantaged community so that the agenda of such Panchayats is not hijacked for majoritarian reasons.' [Cited from Submissions on behalf of the State of Bihar, p. 49]"
Most certainly, it has been argued by the counsel for the petitioner before us that the notification dated 13th January 2014 followed by the press note dated 4th January 2017 have been issued by the Election Commission of India before the notification of election and hence, the challenge being made by them needs to be considered by us in writ jurisdiction. However, looking into the observations made by the Supreme Court in the case of Election Commission of India Vs. Shivaji and others, 1988 (1) SCC Page 277 wherein Hon'ble Supreme Court has observed thus:-
"The word 'election' has by long usage in connection with the process of selection of proper representatives in democratic institutions acquired both a wide and a narrow meaning. In the narrow sense it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling, or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Part XV of the Constitution in which Article 329 (b) occurs."
Since the election process is on, we cannot at this stage interfere in the reservation and allotment of the seats Order issued by the Election Commission of India in exercise of its powers under Articles 324 and 327 of the Constitution of India.
The answer to the first question would be in the negative for the petitioners.
In so far as the second question framed by us is concerned , we may not have been impelled to consider the question on merit having answered the first question in the negative, but because challenge was made to the notification dated 13 January 2014 in the writ petition of Anil Kumar Singh Vs. Union of India & others much before the election notification was issued on 4 January 2017, we proceed to examine the submissions of the petitioners also on merits.
In the writ petition No. 22848 of 2015 Anil Kumar Singh Vs. Union of India which was filed on 20th April 2015 that is much before the election process started, similar grounds for challenge to the notification dated 13th January 2014 have been raised i.e the re-adjustment of seats between Scheduled Caste and Scheduled Tribes in proportion to their population to the total population of the State could only be done after 2026 as per the second proviso to the Article 82 and the Explanation given to Article 330 (3) and that census operation on the basis of caste had been made for the first time after the Independence in the year 2011, and no delimitation exercise could be made before 2026 as per the Articles 82 and 332 of the Constitution and since the Ordinance dated 27 September 2013 had lapsed, the Election Commission cannot exercise powers granted under the said Ordinance and any such exercise is vitiated in law and therefore, deserves to be declared as void.
After carefully going through the Constitutional and Statutory provisions, we have come to the conclusion that delimitation of territorial Constituencies and readjustment of seats on the basis of proportion of the population of reserved categories to the total population of the State is to be done under a different provision of the Constitution which requires a Presidential Order to be issued for bringing such delimitation or readjustment into effect and which readjustment cannot be done till the census after 2026.
However, reservation and allotment of seats can be done by the Election Commission of India in exercise of its powers under Article 324 read with 327 of the Constitution and for exercise of its powers for reservation and allotment of seats for Assembly Constituencies, the figures published by the Registrar General of India and Census Commissioner of India on 22 March 2013/ 1 April 2013 alone needed to be taken into account. The Data on total Scheduled Caste and Scheduled Tribes population has always been published and released by the Registrar General and Census Commissioner of India for rural and urban areas in all census operations conducted including census of 2001 and 2011. It is only with regard to enumeration of unreserved category i.e. castes and sub castes, thereafter a Socio-Economic Castes Census was conducted by the Government of India in 2011 wherein names of all castes and tribes (including Scheduled Caste and Scheduled Tribes) for every person living in India were collected. Data on each of the castes and tribes based on Socio-Economic Caste Census 2011 are yet to be released.
The Registrar General and Census Commissioner of India has been impleaded as respondent no.3 in Writ Petition No. 22848 of 2015, and in the counter affidavit filed on behalf of the respondent no.3 to the said writ petition, the Registrar General and Census Commissioner of India have stated that number of persons belonging to Scheduled Castes and Scheduled Tribes population are collected in each census for rural areas and urban areas separately. Such population figures are made available to the Election Commission of India for its use in reservation and allotment of seats in rural and urban areas. The persons enumerated during the census are categoriesed as SC & ST, if and only if the names of their castes and tribes appear in the list of SC & ST notified for the concerned State / Union Territory.
The notification issued by the Registrar General and Census Commissioner of India on 22 March 2013 clearly says that population figure of 2001 census has been revised as per the SC & ST Orders Amendment Act, 2002 (Act No. 10 of 2003) hence, the argument raised by counsel for the petitioners that there was no ascertainment of SC & ST population till the Census of 2011 also falls to the ground. The argument that reservation cannot be made on the basis of change in population as depicted in 2011 census figures also falls to the ground as it is revised population figure of Census of 2001 with respect to SC & ST population in the State of U.P. after the Amendment Act No. 10 of 2003 which was used to make the reservation and allotment of seats for Scheduled Tribes order Dated 4 January 2017.
In view of the facts as mentioned herein above and the analysis of statutory provisions and law on the subject, made by us these writ petitions are dismissed and the notification dated 13 January 2014 and 14 January 2017 issued by the respondent no.2 are upheld. No order as to costs.
Order Date :- 8.2.2017 Sazia/Arif/shobhit/LBY