W.P.(C) Nos.1928 & 4680 of 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 W.P.(C).No.1928 of 2008(S) -------------------------------------------------------- PETITIONER:- -------------------- V.S.SATHYAN, AGED 49 YEARS, S/O VELAYUDHAN, VISHNUPRABHA HOUSE, V.M.C.NO.17/239, NEAR K.S.R.T.C. BUS STAND, VAIKOM, KOTTAYAM DISTRICT. BY ADV. Dr.K.B.SURESH ## RESPONDENTS:- ------------------------ 1. THE ELECTION COMMISSION OF INDIA, NIRVAJAN BHAVAN, NEW DELHI-110001. 2. THE DELIMITATION COMMISSION, OFFICE OF THE ELECTION COMMISSION OF INDIA, NIRVAJAN BHAVAN, NEW DELHI-1. 3. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, PARLIAMENTARY AFFAIRS, NEW DELHI. 4. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. 5. THE STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, LEGISLATURE COMPLEX ANNEX, TRIVANDRUM. R1, R2 & R5 BY STANDING COUNSEL SRI.MURALI PURUSHOTHAMAN. R3 BY ASSISTANT SOLICITOR GENERAL OF INDIA SRI.P.PARAMESWARAN NAIR. R4 BY GOVERNMENT PLEADER SRI.M.P.SREEKRISHNAN. BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/03/2008, ALONG WITH W.P.(C).NO.4680 OF 2008-S, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ## **H.L.DATTU, C.J. & K.M.JOSEPH, J.** ------------------------------------------ ## **W.P.(C) Nos.1928 & 4680 of 2008** -----------------------------------------Dated, this the 19[th] day of March, 2008 ## **JUDGMENT** ## **K.M.Joseph, J.** These writ petitions are filed purportedly invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. Petitioners are residents of Vaikom. They have approached this Court seeking a declaration that the Constitutional scheme of harmonious rotation of reserved constituencies is implicit and required. A writ of mandamus is also sought for by the petitioners to compel the respondents to rotate the reserved constituency for scheduled caste at Vaikom to any other suitable constituency in Kottayam District of Kerala State. 2. It is their case that from 1977 onwards Vaikom is a constituency reserved for Scheduled Caste and it remains so for the last 30 years. Petitioner in W.P.(C) No.1928 of 2008 was being considered for an allotment of a seat to contest by the Indian National Congress, it is alleged, but he is prevented from contesting from Vaikom, his home town, because of the reservation. It is their contention that while reservation of seat for SC/ST was guaranteed under the constitutional process of Articles 15 and 16, the classification of electorate into that as reserved and non reserved into any length of time will not fit in, in the harmony envisaged under Article 14 of the Constitution. According to the petitioner, the localisation of a reserved constituency for 30 continuous years will be against the constitutional process, arbitrary and illegal. W.P.(C) Nos.1928 & 4680 of 2008 2 3. Petitioner in W.P.(C) No.4680 of 2008 is a political activist residing in Vaikom. It is stated that there is evidence that Scheduled Castes and Scheduled Tribes are not accepted politically. Very few members of those groups are nominated for non reserved seats and only a tiny number are elected and the continued segregation may promote political expediency, but not political intent, it is stated. It is also stated that Vaikom has a population of 136115 and the scheduled caste population is 24961. The population in Kanjirappally and Changanacherry in Kottayam District is also given and it is stated that these are the three constituencies where the Scheduled Caste population is comparatively larger in Kottayam District. It is further stated that the reservation while being a benefit to those benefited, it is a burden to those situated otherwise. As a rational policy, in the method of appointment and other significant procedures, Government had adopted the process of rotation, so that the burden would be evenly distributed and diffused broadly. Even though the petitioner and others brought the injustice to the notice of the Delimitation Commission, the illegality and injustice is being perpetuated, it is complained. 4. In W.P.(C) No.1928 of 2008, a statement has been filed on behalf of the Election Commission of India and and the second respondent, namely, the Delimitation Commission. The Commission has justified the continued reservation of scheduled caste constituency in Vaikom. The statement contains reasons why according to them, reservation in Vaikom is continued. 5. We have heard Dr.K.B.Suresh, learned counsel appearing for the petitioners as also Sri.Murali Purushothaman, learned counsel appearing on W.P.(C) Nos.1928 & 4680 of 2008 3 ## behalf of the Election Commission and the Delimitation Commission. 6. Dr.K.B.Suresh would contend that Article 14 of the Constitution declares a right to be treated as equal. It is stated that as a practical methodology there should not be any concentration of benefits and concentration of burden. It is therefore, contended that non-rotation of reserved constituency in accordance with the provisions of Section 9(c) of the Delimitation Act vitiates the notification. It is contended that though the apex Court has spoken in the matter vide its decision in _**Meghraj Kothari**_ v. _**Delimitation Commission**_ (AIR 1967 SC 669) having regard to the subsequent developments in constitutional law by way of decisions of the apex Court, the matter requires a revisit by this Court. For the said reason he would contend that the decision of the Division Bench of this Court also should not stand in the way of this Court taking a fresh look at the matter. He would contend that there is no constitutional bar for challenging any action done under the notification issued by the Delimitation Commission. Article 329(b), he would contend, is inapplicable for the reason that it envisages a situation consequent on a notification being issued by the Election Commission. He would contend that the ruling of the apex Court in _**Meghraj Kothari's**_ case must be understood as per incuriam and that the apex Court in its decision in _**Mohinder Singh Gill and another**_ v. the _**Chief Election Commissioner, New Delhi and others**_ (AIR 1978 SC 851) has explained the connotation of the words 'election' and 'election process'. He would further contend that there is no such great difference in population strata between Vaikom, Kanjirappally and Changanacherry in Kottayam District and there is non application of mind. W.P.(C) Nos.1928 & 4680 of 2008 4 According to him going by Section 9 of the Delimitation Act, the Commission has authority to rotate seats among the constituencies, which has comparatively larger segments of scheduled caste population. He would contend that an instrument having force of law cannot obviously have more efficacy than the law itself. In a constitutional scheme of things he contends that all laws are subservient to the mandate of Constitution. It is contended that the intention of the draftsman was only that the notification must not be allowed to be challenged indiscriminately so as to make the election process a mockery. He points out that the intention that the matter shall not be called in question in any court is to be found in Articles 136(2) and 227(4) of the Constitution and that this was found insufficient to oust jurisdiction of the Court under Articles 32 and 226 of the Constitution on various grounds like bias, error of jurisdiction and or error of law apparent from the face of record or when the sentence imposed is disproportionate to the crime, etc. He would also contend that judicial review is part of the basic structure itself and therefore, judicial review may be permissible even with regard to an order passed by the Delimitation Commission. 7. Per contra, Sri.Murali Purushothaman, learned counsel for the Commission would point out that the matter must be treated as conclusively decided by the apex Court in _**Meghraj Kothari's**_ case and that there is no warrant also for deviation from the view expressed by the Division Bench of this Court following _**Meghraj Kothari's**_ case. 8. There is no dispute regarding the fact that the issue at hand is not res integra. The question at hand has been squarely considered in the decision W.P.(C) Nos.1928 & 4680 of 2008 5 of the apex Court in _**Meghraj Kothari**_ v. _**Delimitation Commission and another**_ (AIR 1967 SC 669) . So also a Division Bench of this Court in the decision reported in _**Chief Electoral Officer**_ v. _**Sunny Joseph**_ (2005 (4) KLT 599) has followed _**Meghraj Kothari's**_ case and taken the view that the order passed by the Delimitation Commission is not open to judicial review by reason of the fact that the said judicial review is barred by Article 329(a) of the Constitution. Article 329(a) reads as follows: “ **329. Bar to interference by courts in electoral matters.-** - Notwithstanding anything in this Constitution (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court.” 9. Sub-sections (1) and (2) of Section 10 of the Delimitation Act reads as follows: ## **“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 last 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 W.P.(C) Nos.1928 & 4680 of 2008 6 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.” No doubt, Section 9(1) (c) of the Delimitation Act reads as under: “ **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 1991, having regard to the provisions of the Constitution, the provisions of the Acts specified in section 8 and also to the following provisions, namely:- **==> picture [225 x 6] intentionally omitted <==** (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; **==> picture [231 x 9] intentionally omitted <==** 10. It is considering the very same provisions that a Constitution Bench of the apex Court in _**Meghraj Kothari's**_ case took the view that an order passed by a Delimitation Commission has the force of law and taking into W.P.(C) Nos.1928 & 4680 of 2008 7 consideration the mandate of Article 329(a), judicial review is impermissible. In _**Meghraj Kothari's**_ case at paragraph 11, the apex Court has stated as follows: “(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 not to be made the subject matter of controversy in any Court. In other words, Parliament by enacting S.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.(4) of S.10 according to which the readjustment of representation of the several territorial constituencies in the House of the People and the delimitation of those constituencies provided for 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”. 11. We are of the view that when there is a direct decision of the apex Court on the point and the decision of the Division Bench of this Court taking W.P.(C) Nos.1928 & 4680 of 2008 8 the view that judicial review is ousted following the decision in _**Meghraj Kothari's**_ case, it may not be open to us to reconsider the issue in the light of the subsequent decisions. In the light of the pronouncement of the apex Court on the direct issue before us, we do not think that it may be open to us to overlook the said decision of the apex Court as also the decision of the Division Bench of this Court. Accordingly, the writ petitions fail and they are dismissed. ( **H.L.DATTU) CHIEF JUSTICE** **(K.M.JOSEPH) JUDGE** vns