Decide On Invoking Delimitation Act To Ensure Proportionate Representation For SCs/STs In Legislature : Supreme Court Directs Centre

 A contention raised by the Union Government that Article 170 of the Constitution may get in the way of a fresh delimitation exercise was dismissed by the Bench.

"The provisions of Article 170 indicate that until the census takes place after 2026, the total number of seats in the Legislative Assembly would be governed by the readjustment made on the basis of the 1971 census and the division of territorial constituencies would be governed by the readjustment on the basis of the 2001 census. This has no bearing on the exercise which is required to be conducted on the issue which is raised in the present proceedings which essentially relates to the implementation of the principle of representation for the Scheduled Tribes on the basis of the population as indicated in the 2001 census," the Court observed.

The Court noted the submission of the Union that nearly fifty-one communities were added after 2001 to the list of Scheduled Tribes until the last census took place in 2011. This is a matter which must engage the attention of the Union Government, the Court stated.

Before parting, it was clarified that the judgment shall not interfere with the election schedule that the Election Commission may prescribe for conduct of elections either to Parliament or to State Legislative Assemblies.

Background

The factual background of the case was such that vide the Scheduled Castes and STs Orders (Amendment) Act 2002 (“2002 amending Act”), the Limboo and Tamang communities were included to the list of STs for States of WB and Sikkim. In 2006, the Delimitation Notification 2006 was published by the Delimitation Commission, without accounting for STs designated under the 2002 amending Act (including Limboo and Tamang communities).

This 2006 Notification formed the basis of the Delimitation Order 2008 issued by the Election Commission under the Representation of People (RP) Act. Aggrieved by the non-inclusion, the petitioners moved the Supreme Court seeking proportional representation of STs in the Lok Sabha and Legislative Assemblies of WB and Sikkim, claiming that the 2006 Notification and the 2008 Order are defective and an election notification based on the same would be in violation of the Constitution.

Essentially, they prayed that the Delimitation Commission amend the 2006 Notification to provide proportionate reservation for STs under Article 332, followed by the Election Commission amending the 2008 Order. Reliance was placed on the Supreme Court's decision in Virendra Pratap and Another v. Union of India and Others where, agreeing that STs had a right to proportional representation under Articles 330 and 332 of the Constitution, the court directed Election Commission to take appropriate steps to ensure their representation in Lok Sabha and Legislative Assemblies of States.

The Election Commission, contrarily, claimed that the legislative framework for reservation of seats requires an amendment to the RP Act, which is the exclusive mandate of the Parliament. Further, readjustment of seats requires an enabling provision in law empowering the Commission to undertake changes in Delimitation Orders passed by the Delimitation Commission in States of WB and Sikkim, which is absent.

Observations of the Court

The Bench observed that Section 8 of the Delimitation Commission Act requires exercise of the Delimitation Commission's powers, in determining reserved seats, to be in accordance with the 2001 census. For the same, due regard must be had of the provisions of Articles 81, 170, 330 and 332 of the Constitution.

On the issue as to whether the Delimitation Commission could amend the 2006 Notification, it was held that the Delimitation Act only provides for changes prior to the final notification. Once published, the Notification cannot be amended even by the Delimitation Commission under the 2002 Act.

“Any changes to the 2006 Notification, could only have been made in accordance with the Delimitation Act. The Act envisages changes/suggestions only until the publication of the final notification, consequent to which, the notification assumes the force of law in supersession of any other law for the time being in force. In view of Article 329, it is beyond the realm of judicial review.”

On the second aspect, i.e. whether the Election Commission could Amend the 2008 Order to incorporate the changes, the Bench said that the RP Act does not envisage a duty vested in the Election Commission to amend the 2008 Order to include the 2002 amending Act.

It was observed that if the Election Commission considers it “necessary and expedient”, it may consolidate any order or notification with the 2008 Order. However, the same shall be subject to two conditions: (i) the order/notification being related to delimitation of constituencies, and (ii) it being issued under Section 8A of the RP Act (or any other Central Act).

Notably, the amending Act of 2002 was enacted under Articles 341(2) and 342(2) of the Constitution. It did not relate to delimitation, but to designation of certain Castes and Tribes as Scheduled Castes and Tribes for the purpose of the Article 366 of the Constitution.

The Bench added that under Section 9 of the RP Act (power of the Election Commission to maintain 2008 Delimitation Order up to date), the Election Commission's discretion to consolidate any notification or order with the 2008 Order, even if coupled with a duty to act, did not warrant exercise of duty to amend the 2008 Order to include the 2002 amending Act, as the duty arose only when the conditions for its exercise were fulfilled.

So far as the petitioners relied in the alternative on Section 9 of the RP Act and Section 11 of the Delimitation Act (power of the Election Commission to maintain delimitation orders up to date), to suggest that Election Commission correct the 2006 and 2008 Orders by reserving seats for the Limboo Tamang STs, the Bench observed that the non-inclusion of Limboo Tamang STs was not attributable to a mere “error” arising out of an inadvertent slip or omission, which were the only grounds under which Orders could be altered by the Delimitation or Election Commission.

“…this non-inclusion arises due to a lack of an enabling statutory provision which would accommodate post-census changes to the delimitation exercise”.

Counsels for petitioners: Advocates Prashant Bhushan and Pritika Kumar

Counsel for respondents: ASG KM Nataraj for Union of India; Senior Advocates Rakesh Dwivedi and Ashok Panda for State of West Bengal; Advocate Amit Sharma for Election Commission

Case Title: Public Interest Committee for Scheduling Specific Areas and Anr v. Union of India & Ors, Writ Petition (Civil) No 443 of 2017 (and connected matter)

Citation : 2023 LiveLaw (SC) 1074

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