Infant Thomas v. Election Commission of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942** ## **WP(C).No.1153 OF 2021(T)** ## **PETITIONER:** **INFANT THOMAS, MATTEL HOUSE, MACHIPLAVU, ADIMALY, IDUKKI.** **BY ADVS. SRI.P.P.JACOB SMT.MARIYAM JACOB** ## **RESPONDENTS:** - **1 THE ELECTION COMMISSION OF INDIA, NIRVAJEN SAJAN, ASHOKA ROAD, CHANAKYAPURI, NEW DELHI-110001, REPRESENTED BY ITS SECRETARY.** - **2 THE CHIEF ELECTION COMMISSION, KERALA ELECTION DEPARTMENT, KERALA LEGISLATIVE COMPLEX, VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.** - **3 THE CENTRAL GOVERNMENT OF INDIA, REPRESENTED BY ITS CABINET SECRETARY TO CENTRAL GOVERNMENT, RASHTRAPATHI BHAVAN, NEW DELHI-110001.** - **4 THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **5 THE NATIONAL HUMAN RIGHTS COMMISSION, MANAV ADHIKAR BHAWAN, BLOCK-C, GPO COMPLEX, INA, NEW DELHI-110023.** - **6 THE KERALA STATE HUMAN RIGHTS COMMISSION, 4TH FLOOR, TURBO PLUS TOWER, PMG ROAD JUNCTION, NEAR PMG, THIRUVANANTHAPURAM-695033.** - **BY ADVS. SRI.MURALI PURUSHOTHAMAN, SC, ELE.COMMN. SMT.PRINCY XAVIER, GOVERNMENT PLEADER SRI.P.VIJAYAKUMAR, ASGI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.1153 OF 2021(T)** **2** ## **JUDGMENT** **The petitioner claims to be a resident of Adimali in Idukki district. His grievance is that the Devikulam Assembly Constituency has been reserved for Scheduled Caste category from 1960 onwards.** **2. According to petitioner, only 10.4% of the population in Devikulam Constituency belongs to Scheduled Caste community and that the total population is 1,68,876 as per the data he has collected as on 2019. According to him, there is no justification for continuing the reservation for more than 60 years. Therefore he complains that his right to contest Election in the General category is lost on account of the continuous reservation of the said Constituency for Scheduled Caste community. He therefore seeks a direction to the 1[st] respondent to consider and dispose of Ext.P1 representation,** **WP(C).No.1153 OF 2021(T)** **3** **before issuing notification of Election to the Assembly Constituency in Kerala.** **3. Sri.Murali Purushothaman, the learned Standing Counsel has filed a statement on behalf of the respondents 1 and 2, raising objection as to maintainability of the writ petition, in view of the bar imposed on interference by Courts under Article 329(a) of the Constitution of India and in the light of the the judgment of the Constitution bench of the Apex Court in** _**Meghraj Kothari v. Delimitation Commission**_ **[AIR 1967 SC 699]. The relevant contentions in the statement, read as follows:** _**“ xxx 4. The Delimination Commission of India in exercise of its powers under Sections 4(2), 9(2) and 10(1) of the Delimination Act, 2002 has passed an order dated 16-05-2005 vide its notification No.282/KL/2005 delimiting the Assembly and Parliamentary Constituencies in the State of Kerala. The said order has been published in the Gazette of India and re-published in the official**_ **WP(C).No.1153 OF 2021(T)** **4** _**Gazette of Kerala on 31-05-2005. As per the ' - said delimination order 88 Devikulam Assembly constituency in Idukki District in the State of Kerala is reserved for Scheduled Caste. Upon publication in the gazette, every such order shall have the force of law and shall not be called in question in any Court in view of Article 329(a) of the Constitution of India.**_ _**5. xxx**_ ## _**6. xxx**_ _**7. Article 170(3) provides that upon 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 re-adjusted by such authority and in such manner as parliament may by law determine. The Census Commissioner of India published the relevant figures of the 2001 census on 31-12-2003 and on the basis of such figures the Delimitation Commission of India delimited the Parliamentary and Assembly constituencies in India under the Delimitation Act, 2002 and the final delimitation order delimiting the Assembly and Parliamentary constituencies in Kerala was published on 31-05-2005.**_ _**8.**_ - _**Section 9(1)(c) of the Delimitation Act, 2002 provides that the Delimitation Commission shall delimit the Constituencies and the Constituencies in which seats are**_ **WP(C).No.1153 OF 2021(T)** **5** _**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. Going by the provisions contained under Article 332 of the Constitution of India and Section 9(1)(c) of the Delimitation Act, 2002 and the guidelines and methodology for delimitation of Constituencies seats have to be reserved for the Scheduled Castes and Scheduled Tribes in proportion to their population to the total population of the State. This allocation of seats for the SC and ST was worked out by the Delimitation Commission separately both for the Assembly and Parliamentary Constituencies in each State, on the basis of 2001 Census. SC seats were reserved in those Constituencies in the District in which, so far as practicable, the percentage of their population to the total population is the largest, in descending order equal to the number of SC seats in the District concerned.**_ _**9. xxx**_ _**10. It is submitted that, as stated above, the entitlement of seats in the district as well as SC and ST seats in a State is purely arithmetical calculation based on the Census Figures 2001. As per the above calculations, the number of seats to be reserved for SCs**_ **WP(C).No.1153 OF 2021(T)** **6** _**in the State of Kerala, on the basis of 2001 census figures as published by the Registrar General of India, are as follows:**_ _**(A) Total No. of seats for SCs in Kerala Legislative Assembly = Total SC population (3123941)/ Total population (31841374) x Total Assembly seats (140)=13.74=14.**_ _**(B) Total No. of seats for SCs of Kerala Lok Sabha = Total SC population (3123941)/ Total population (31841374) x Total Lok Sabha seats (20)=1.96=2.**_ _**The entitlement of SC seats in Idukki District = population of SCs in Idukki District (159445)/the population of SCs in the State (3123941) X number of assembly seats reserved for SCs in the State(14))=01.71=1.**_ _**From the above calculation, it is submitted that Idukki District is entitled to one SC seat. Further, in Idukki District there are Five Assembly Constituencies out of which 88-Devikulam has maximum percentage of SC population (28.10) and has, therefore, been reserved for SCs.**_ _**11. xxx**_ _**12. From above table it can be seen that the total population of Idukki District as per 2001 Census is 1128894. The total Scheduled Caste population is 15,9445. The total Scheduled Tribe population is 50973.**_ **WP(C).No.1153 OF 2021(T)** **7** _**Therefore as evident from the above table, from out of the five Assembly Constituencies in Idukki, Devikulam Assembly Constituency has the largest percentage of Scheduled Caste population. In Devikulam Assembly Constituency, the total population is 212207. The Scheduled Caste population in Devikulam Assembly Constituency is 59636. The percentage of Scheduled Caste population in Devikulam Assembly Constituency is 28.10. Peerumade Assembly Constituency is having the second largest percentage of Scheduled Caste population with 23.29%. Therefore, going by the provisions contained under Article 332 of the Constitution of India and Section 9(1)(c) of the Delimitation Act, 2002, the Delimitation Commission has reserved Devikulam Assembly Constituency for Scheduled Castes. The said delimitation and reservation of seat for Scheduled Castes cannot therefore be assailed on merits also. 13. As submitted, the final delimitation order delimiting the Assembly and Parliamentary constituencies in Kerala was published on 31-05-2005. The 2[nd] proviso to Article 170(3) provides that such re-adjustment shall take effect from such date as the President may by order specify and until then election to the Legislative Assembly may be held on the basis of the territorial constituencies existing before such re-adjustment. In exercise of the powers under Articles 82 and**_ **WP(C).No.1153 OF 2021(T)** **8** _**170(3) of the Constitution of India the President of India has specified the date on which readjustment notified by the Delimitation Commission in terms of Sections 8 and 9 of the Delimitation Act, 2002 shall take effect and as per the Presidential Order dated 19-02-2008 the delimitation order in respect of State of Kerala has been given effect from 19-02-2008. Now such readjustment of seats has been 'Constitutionally frozen' till the census figures after 2026 is published as per the 3[rd] proviso to Article 170(3). 14. Thus, the final delimitation order delimiting the Parliamentary and Assembly constituencies in Kerala published on 31-052005 has come into force from 19-02-2008 and all elections to Parliament and Assembly in the State of Kerala after 19-02-2008 were held pursuant to such delimitation. As per the said delimitation order '88-Devikulam Assembly constituency in Idukki District in the State of Kerala is reserved for Scheduled Caste on the basis of the provisions of Article 332 of the Constitution of India and Section 9(1)(d) of the Delimitation Act, 2002. The same cannot be readjusted till the census figures after 2026 is published as per the 3[rd] proviso to Article 170(3).**_ _**xxx”**_ **WP(C).No.1153 OF 2021(T)** **9** **4. Sri. Murali Purushothaman, the learned Standing Counsel also relied on the judgment of the Division Bench of this Court in** _**Sathyan v. Election Commission of India and Others**_ **[2008 (4) KHC 245], in which an identical issue was considered in respect of Vaikom Constituency in Kottayam district. Relying on the Constitution bench judgment in** _**Meghraj Kothari's**_ **case (supra), this Court concluded that it would not be open for this Court to reconsider the issue as the Apex Court has in** _**Meghraj Kothari's**_ **case (supra), considered the very same issue. It was concluded that judicial review is ousted in the light of the judgment of Apex Court and also the judgment of the Division Bench in** _**Chief Electoral Officer v. Sunny Joseph**_ **[2005 (4) KLT 599]. The learned Standing counsel has also made available the copies of the notification issued on 31.05.2005 by the Delimitation Commission of** **WP(C).No.1153 OF 2021(T)** **10** **India, published in Kerala Gazette dated 31.05.2005. It is evident from it that the said notification was issued after issuing a draft notification inviting objections in Gazette dated 23.03.2005 and after considering all the objections and suggestions and public hearing that the said notification was issued. Devikulam Constituency is at serial no.88 therein, in Idukki district with Adimali, Kanthalloor, Mankulam, Marayoor, Munnar, Pallivassal, Vattavada and Vellathuval Panchayats in Devikulam Taluk and Baisonvally and Chinnakanal Panchayats in Udumbanchola Taluk.** **5. Though the learned Counsel for the petitioner relying on the order dated 10.01.2012 of the Honourable Supreme Court in Writ Petition (Civil) No.540 of 2011 argued that the representations submitted by the petitioner requires consideration, I am of the view that in** **WP(C).No.1153 OF 2021(T)** ## **11** **the light of the judgment of the Constituition Bench in** _**Meghraj Kothari's**_ **case (supra), this Court would not be justified in issuing such a direction under Article 226 of the Constitution of India. It is also relevant to the note contained in the 3[rd] proviso to Article 170(3)** **of the Constitution of India, which reads as follows:** _**“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 xxxxxx**_ _**(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:**_ **WP(C).No.1153 OF 2021(T)** **12** _**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.”**_ **In such circumstances, the grievance of** **the petitioner, warrants consideration only after the next Census, which would be conducted in 2026, when further orders would be passed in** **WP(C).No.1153 OF 2021(T)** ## **13** **2031. Therefore in the light of the 3[rd] proviso to Article 170(3) of the Constitution of India as interpreted by the Constitution bench of the Supreme Court in** _**Meghraj Kothari's**_ **case (supra) as well as statutory provisions contained in Section 10, 9 and 4 of the Delimitation Act, 2002, read with the order made by the Delimitation Commission under the aforesaid provisions published in the Gazette dated 31.05.2005, which is having statutory force, interference of this Court is not called for in the present case.** **In the aforesaid circumstances, the writ** **petition is only to be dismissed.** **Ordered accordingly. Sd/-** **P.V.ASHA JUDGE** **ww** **WP(C).No.1153 OF 2021(T)** **14** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED TO THE FIRST RESPONDENT DATED 2.1.2021. EXHIBIT P2 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED TO THE SECOND RESPONDENT DATED 2.1.2021. EXHIBIT P3 TRUE PHOTOCOPY OF THE ACKNOWLEDGEMENT CARD SHOWING THE RECEIPT OF EXT.P2. EXHIBIT P3 TRUE PHOTOCOPY OF THE ORDER IN WRIT (REPLY AFFIDAVIT) PETITION (CIVIL) NO.540/2011 DATED 10.1.2021. EXHIBIT P4 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED TO THE FIFTH RESPONDENT DATED 2.1.2021. EXHIBIT P5 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED TO THE SIXTH RESPONDENT DATED 2.1.2021. EXHIBIT P6 TRUE PHOTOCOPY OF THE POSTAL RECEIPT ISSUED TO THE PETITIONER DATED 4.1.2021.**