Full Judgment Text
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2047 _____OF 2009
(Arising out of SLP (C) No. 19497 of 2008)
Association of Resident of Mhow
(ROM) & Anr. …Appellants
Versus
The Delimitation Commission of
India & Ors. …Respondents
J U D G M E N T
B.SUDERSHAN REDDY, J.
Leave granted.
2. This appeal has been filed against the judgment
and order of the High Court of Madhya Pradesh at
Jabalpur dismissing the W.P. (c) No. 13509 of 2007
filed by the appellants herein.
2
INTRODUCTION:
3. The periodic readjustment of the Lok Sabha and
Assembly Constituencies is mandatory in
representative systems where single member
constituencies are used for electing political
representatives. The electoral districts are dawn on
the basis of the last published census figure that they
are relatively equal in population. Electoral districts
that vary significantly in population – a condition called
malapportionment – violate a central tenet of
democracy that all the votes cast must be of equal
weight. The last delimitation was in 1973 pursuant to
the Delimitation Act, 1972. Since then there has been
increase of 87% in the population and most of the
constituencies across the country have become
malapportioned.
3
4. The Delimitation Act, 2002 (for short ‘the Act’) 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 and each Union
territory having a legislative Assembly into territorial
constituencies for election to the House of the People
and Legislative Assemblies of the States and Union
territories and for matters connected therewith. The
Central Government constituted the Delimitation
Commission (for short ‘the Commission’) in exercise of
its power under Section 3 of the Act consisting of a
retired judge of the Supreme Court as its Chairperson
and other members. The Commission so set up started
functioning w.e.f. 4.7.2002.
5. In order to appreciate the nature of functions and
duties entrusted to the Commission it may be just and
necessary to notice the relevant provisions.
4
6. Section 8 deals with readjustment of number of
seats. It says:
“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 1[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 1[2001] the number
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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 ).
7. Section 9 deals with delimitation of constituencies
which is 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 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
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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
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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.
FACTUAL BACKGROUND:
8. In the State of Madhya Pradesh there are 29
Parliamentary Constituencies and 230 Assembly
Constituencies. Out of these 29 Parliamentary
Constituencies 27 have 8 Assembly Constituencies each
and 2 Parliamentary Constituencies have 7 Assembly
Constituencies each. In pursuance of sub-section (2)
of Section 9 of the Act, the Commission vide its
Notification dated 19.1.2007 published its proposals for
the delimitation of Parliamentary and Assembly
Constituencies in the State of Madhya Pradesh. The
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Commission invited objections and suggestions in
regard to its proposals to be submitted on or before
1.2.2007 after which date the proposals were to come
up for further consideration by the Commission. Under
the said proposals Dhar Parliamentary Constituency is
shown consisting of 8 Assembly Constituencies
including 203-Depalpur and the adjoining 26-Indore
Parliamentary Constituency also had 8 Assembly
Constituencies including 209-Mhow. The Commission
upon considering the objections and suggestions finally
determined the delimitation of both Dhar and Indore
Parliamentary Constituencies. In its final
determination the Commission included Mhow
Assembly Constituency into Dhar Parliamentary
Constituency by deleting the same from Indore
Parliamentary Constituency as originally proposed.
Consequently the Depalpur Assembly Constituency has
been deleted from Dhar Parliamentary Constituency
and added to Indore Parliamentary Constituency. The
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present controversy centers around final determination
of the delimitation of Indore Parliamentary
Constituency.
9. The main issue that arises for our consideration in
the present appeal is whether the Commission had
complied with the mandatory requirement as provided
for in Section 9 (2) of the Act, insofar as it concerns
the shifting of Mhow Assembly Constituency from
Indore Parliamentary Constituency and including the
same into Dhar Parliamentary Constituency.
10. Shri Prashant Bhushan, learned counsel for the
appellant submitted that the Commission in its final
determination decided to shift Mhow Assembly
Constituency from Indore Parliamentary Constituency
and included the same into Dhar Parliamentary
Constituency without complying with the mandatory
requirements of Section 9 of the Act. The submission
10
was that there was no proposal by the Commission for
shifting Mhow Assembly Constituency from Indore
Parliamentary Constituency to Dhar Parliamentary
Constituency and on the other hand the Commission in
its proposals clearly indicated Mhow Assembly
Constituency to be a part of Indore Parliamentary
Constituency for which there was no objection
whatsoever from any quarter.
The Commission held a public hearing on
22.2.2007 at Indore in which there was no suggestion
that Mhow Assembly Constituency should be shifted
from Indore Parliamentary Constituency to Dhar
Parliamentary Constituency.
The Commission decided to interchange 203-
Depalpur and 209-Mhow Assembly Constituencies
between 25-Dhar (ST) and 26-Indore Parliamentary
Constituencies.
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11. Shri Ashok Desai, learned senior counsel for the
respondents submitted that the decision of the
Commission is not ultra vires the provisions of the Act
and the Guidelines and Methodology of the
Commission. The draft proposals of the Commission
for the delimitation of the constituencies vide its
Notification dated 14.5.2007 was for the whole of the
State of Madhya Pradesh and not with reference to any
one or more Parliamentary Constituencies. The
Commission only proposed the names and extents of
the constituencies which were subject to change
including addition and deletion of one or more
Assembly Constituencies in the light of
suggestions/objections to be received from public and
also in keeping with the provisions of the Act and the
Guidelines and Methodology of the Commission. The
decision of the Commission in including 203-Depalpur
Assembly Constituency in 26-Indore Parliamentary
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Constituency was due to vocal demand made in the
public meeting convened for further consideration of
the proposals. As a consequence, to maintain
equilibrium it became necessary for the Commission to
shift Mhow Assembly Constituency for its addition to
Dhar Parliamentary Constituency on the grounds of
contiguity and compactness.
12. The short question that arises for consideration is
whether Mhow Assembly Constituency could have been
shifted from Indore Parliamentary Constituency for its
inclusion into Dhar Parliamentary Constituency without
there being any proposal whatsoever.
13. In the present case, one Uma Narayan Singh Patel
and others addressed a representation on 27.1.2007
to the Chairperson of the Commission raising number
of objections to the proposal to include Depalpur
Assembly Constituency in Dhar Parliamentary
13
Constituency and suggested for its inclusion into Indore
Parliamentary Constituency. It would be useful to refer
in detail to the objections raised in this regard which
are as under:
i) 80% of the villages of Depalpur Assembly
Constituency are adjoining Indore city and the
rest 20% are comprised within Indore city;
ii) 60% of the villages of Deepalpur Assembly
Constituency are only 2 to 40 kms. from Indore
city;
iii) The transport for communication from the
villages of Deepalpur Assembly Constituency to
Indore city is good and available in abundance
while no transport for communication is
available for Dhar Parliamentary Constituency
which is hundred kilometers away from this
Assembly Constituency;
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iv) 30% of the villages of the Deeplapur Assembly
Constituency are under Indore Development
Authority and Municipal Corporation;
v) 40% of the villages of Deepalpur Assembly
Constituency which revenue oriented are under
Indore Tehsil. Due to this, the Revenue
Inspector Circle will undergo a change including
Hatod RIC.
Vi) 2% of Revenue boundary of Deepalpur
Assembly Constituency touches Dhar
Parliamentary Constituency while 70%
boundary of Mhow Assembly Constituency
touches Dhar Parliamentary Constituency and
Dhar Revenue Department.
14. It was clearly suggested that Mhow Assembly
Constituency should be included in Dhar Parliamentary
Constituency in place of Depalpur Assembly
Constituency. In the public meeting held on 22.2.2007
15
at Indore, suggestions were made to shift Depalpur
Assembly Constituency to the Indore Parliamentary
Constituency from Dhar Parliamentary Constituency.
The Commission after considering the objections and
suggestions received by it, and having found merit in
the suggestions and representations for including
Depalpur Assembly Constituency in Indore
Parliamentary Constituency got published its final
decision to shift Depalpur Assembly Constituency from
Dhar Parliamentary Constituency and made it to be a
part of Indore Parliamentary Constituency and in the
process also shifted Mhow Assembly Constituency to
Dhar Parliamentary Constituency.
15. The contention of the learned counsel for the
appellant was that there were no objections to the
proposals of the Commission in including Mhow
Assembly Constituency as part of Indore Parliamentary
Constituency and in such a situation there was no
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option to the Commission but to go ahead with its
proposals to include Mhow in Indore Parliamentary
Constituency.
16. Section 9 (1) of Act prescribes distribution of 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.
Section itself provides the factors to be taken into
consideration including 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;
17
( 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.
17. Section 9(2) of the Act mandates the Commission
to follow the following steps before determining the
delimitation of any Constituency, namely:
a) publish its proposal for the delimitation of the
constituency, along with dissenting proposals,
if any;
b) specify a date on which the proposals shall be
further considered by it;
18
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;
and
d) Only thereafter the Commission can determine
the delimitation of a Constituency.
18. The most important aspect of the matter required
to be borne in mind is that the proposals for
delimitation published under Section 9 (2) of the Act
are with regard to the whole of the State. The
proposals are not a constituency-centric one.
Determining the delimitation of Parliamentary
Constituencies and Assembly Constituencies is a very
complex and lengthy process. Section 9 (1) of the Act
mandates the Commission as to what are the factors
apart from the provisions of the Constitution and
provisions of the Act required to be taken into
19
consideration which are noticed herein above. Section
9 (2) mandates the Commission to publish its
proposals for the delimitation of the constituencies in
the manner provided thereunder. It is true,
determination of the delimitation of Parliamentary
Constituencies and Assembly Constituencies, as the
case may be, shall be only after consideration of all
objections and suggestions which may have been
received by the Commission before the specified date
for which purposes the Commission may hold one or
more public sittings at such place or places in each
State as it thinks fit. The Commission is not required
to hold public meeting in each and every Parliamentary
Constituency. What the Commission required is to
consider the objections and suggestions for its
proposals before determining the delimitation of the
constituencies in the entire State. The proposals
cannot emanate from any interested person. The
distinction between the Commission’s proposals and
20
objections and suggestions in response to such
proposals is to be borne in mind. Every suggestion or
objection cannot ultimately result in any fresh proposal
by the Commission. The Commission is not under any
legal or Constitutional obligation to go on issuing any
revised proposals depending upon every objection and
suggestion as may be received by it in response to its
proposals. Since the exercise of the delimitation is not
with reference to any particular constituency, the
suggestions or objections, as the case may be, in
respect of one constituency may have their impact at
least on one or more of the adjoining constituencies.
In the present case, various objections were lodged
and suggestions were made as to why Depalpur
Assembly Constituency is to be included in Indore
Parliamentary Constituency in which the Commission
found merit and those suggestions do have a direct
bearing on the delimitation of Indore Parliamentary
Constituency as well. The cascading effect cannot be
21
avoided. The Commission could not have retained
Depalpur Assembly Constituency and as well as Mhow
Assembly Constituency in Indore Parliamentary
Constituency in which event Indore Parliamentary
Constituency would have 9 Assembly Constituencies
while Dhar Parliamentary Constituency would have only
7 Assembly Constituencies resulting in avoidable
malappropriation. The Commission’s power to
determine delimitation of the constituency is not
unlimited but is structured by the provisions of the Act
and more particularly by Sections 8 and 9 of the Act
apart from the Constitution (Eighty-fourth Amendment)
Act, 2001 and Constitution (Eighty-seventh
Amendment) Act, 2003 which have, inter alia,
amended Articles 81, 82, 170, 330 and 332 of the
Constitution of India. The effect of these amendments
to the Constitution inter alia is that each Parliamentary
Constituency in each State shall be an integral multiple
of the number of seats comprised therein and no
22
Assembly Constituency shall extend to more than one
Parliamentary Constituency. The Commission in the
present case appears to have determined the
delimitation of both Dhar and Indore Parliamentary
Constituencies in such a manner whereby each of the
Parliamentary Constituency shall consist of equal
number of 8 Assembly Constituencies. It appears the
Commission had also taken into consideration the
contiguity, geographical features, public convenience
etc. before finally determining the delimitation of both
the Parliamentary Constituencies. We find no illegality
to have been committed by the Commission.
19. In the present case, the High court of Madhya
Pradesh at Jabalpur summarily dismissed the writ
petition under Article 226 of the Constitution praying
for writ of certiorari for quashing the notification
issued in pursuance of sub-section (1) of Section 10 of
the Act in respect of the delimitation of Indore
23
Parliamentary Constituency. The petition was rejected
on the short ground that the order of the Commission
once published under Section 10(2) of the Act is law
made under Article 327 of the Constitution and cannot
be called in question in any court by virtue of Article
329 of the Constitution.
20 . The learned counsel for the appellants submitted
that only such decision of the Commission determining
delimitation of Constituencies after following the
mandatory procedure under Section 9 (2) of the Act, if
it is published, becomes a force of law and it cannot be
questioned in any court. Thus, the protection under
Section 10 (2) of the Act as well as Article 329(a) is
available only when the mandatory requirements of
Section 9(2) are complied with by the Commission. In
support of the submission reliance was placed on the
decision of this Court in State of U.P. Vs. Pradhan
Singh Khesttra Samiti [ 1995 suppl. (2) SCC 305.
24
21. The decision in Pradhan (supra) upon which
reliance has been placed by the learned counsel for the
appellants in no manner supports the contention urged
before us. On the other hand, this Court found the
approach of the High Court to be objectionable for it
had gone into the question of validity of the
delimitation of the constituencies and also allotments
of seats to such constituencies although clause (a) of
Article 243-O of the Constitution enacts a bar on the
interference by the courts in electoral matters. In the
said case, this court dealt with the provisions of
Articles 243-C, 243-K and 243-O and the provisions of
Panchayat Raj Act,1947 and Section 9 of the
Delimitation Act, 1950. It was observed:
“ What is more objectionable in the approach
of the High Court is that although clause ( a )
of Article 243-O of the Constitution enacts a
bar on the interference by the courts in
electoral matters including the questioning of
the validity of any law relating to the
delimitation of the constituencies or the
allotment of seats to such constituencies
made or purported to be made under Article
25
243-K and the election to any panchayat, the
High Court has gone into the question of the
validity of the delimitation of the
constituencies and also the allotment of
seats to them. We may, in this connection,
refer to a decision of this Court in Meghraj
3
Kothari v. Delimitation Commission . In that
case, a notification of the Delimitation
Commission whereby a city which had been a
general constituency was notified as reserved
for the Scheduled Castes. This was
challenged on the ground that the petitioner
had a right to be a candidate for Parliament
from the said constituency which had been
taken away. This Court held that the
impugned notification was a law relating to
the delimitation of the constituencies or the
allotment of seats to such constituencies
made under Article 327 of the Constitution,
and that an examination of Sections 8 and 9
of the Delimitation Commission Act showed
that the matters therein dealt with were not
subject to the scrutiny of any court of law.
There was a very good reason for such a
provision because if the orders made under
Sections 8 and 9 were not to be treated as
final, the result would be that any voter, if he
so wished, could hold up an election
indefinitely by questioning the delimitation of
the constituencies from court to court.
Although an order under Section 8 or Section
9 of the Delimitation Commission Act and
published under Section 10(1) of that Act is
not part of an Act of Parliament, its effect is
the same. Section 10(4) of that Act puts such
an order in the same position as a law made
by Parliament itself which could only be
made by it under Article 327. If we read
Articles 243-C, 243-K and 243-O in place of
Article 327 and Sections 2( kk ), 11-F and 12-
BB of the Act in place of Sections 8 and 9 of
the Delimitation Act, 1950, it will be obvious
that neither the delimitation of the panchayat
area nor of the constituencies in the said
areas and the allotments of seats to the
constituencies could have been challenged
nor the court could have entertained such
challenge except on the ground that before
26
the delimitation, no objections were invited
and no hearing was given. Even this
challenge could not have been entertained
after the notification for holding the elections
was issued. The High Court not only
entertained the challenge but has also gone
into the merits of the alleged grievances
although the challenge was made after the
notification for the election was issued on 31-
8-1994.”
22. It is true the observations made in this judgment
“that neither the delimitation of the Panchayat area nor
the constituencies in the said area and the allotments
of seats to the constituencies could have been
challenged nor the court could have entertained such
challenge except on the ground that before the
delimitation, no objections were invited and no hearing
was given” may lend some support to the submission
made by the learned counsel for the appellant that
there could be a challenge in case where final
determination of delimitation of constituencies was
made without inviting any objections whatsoever. But
that is not the ratio of the judgment. This court in
Pardhan (supra) was not considering any similar issue
27
as the one that had arisen for our consideration in the
present case. This Court did not take any view that the
proposals in respect of each constituency shall have to
be treated as an independent proposal and the
Commission’s power to determine delimitation of the
constituencies is with reference to each constituency.
The objections and/or suggestions, as the case may be,
are required to be taken into consideration treating the
proposals as for whole of the State and delimitation of
the constituencies with reference to a State as a Unit.
23. In Meghraj Kothari Vs. Delimitation
Commission & Ors. [(1967) 1 SCR400], a
Constitution Bench of this court while interpreting
Sections 8, 9, and 10 of the Delimitation Commission
Act, 1962 which are in pari materia with the provisions
of the present Act, observed:
“In our view, therefore, the objection to the
delimitation of constituencies could only be
entertained by the Commission before the
date specified. Once the orders made by the
28
Commission under Sections 8 and 9 were
published in the Gazette of India and in the
official gazettes of the States concerned,
these matters could no longer be reagitated
in a court of law. There seems to be very
good reason behind such a provision. If the
orders made under Sections 8 and 9 were
not to be treated as final, the effect would be
that any voter, if he so wished, could hold up
an election indefinitely by questioning the
delimitation of the constituencies from court
to court. Section 10 (2) of the Act clearly
demonstrates the intention of the Legislature
that the orders under Sections 8 and 9
published under Section 10 (1) were to be
treated as law which was not to be
questioned in any court.
It is true that an order under Section 8
or 9 published under Section 10 (1) is not
part of an Act of Parliament, but its effect is
to be the same.”
24. The Constitution Bench went to the extent of
saying that “an examination of Sections 8 and 9 of
the Act shows that the matters therein dealt with
were not to be subject to the scrutiny of any court of
law….……. The provision of Section 10(4) puts orders
under ss 8 and 9 as published under Section 10 (1)
29
in the same street as a law made by Parliament itself
which……. could only be done under Article 327, and
consequently the objection that the notification was
not to be treated as law cannot be given effect to”.
CONCLUSION:
25. In the present case, the Commission finally
determined the delimitation of Parliamentary
Constituencies in the State of Madhya Pradesh after
considering all objections and suggestions received by
it before the specified date and got published its orders
in the Gazette of India and in the Official Gazette of the
State as is required under Section 10 (1) of the Act.
The orders so published puts them “in the same street
as a law made by Parliament itself”. Consequently that
Notification is to be treated as law and required to be
given effect to.
30
26. For all the aforesaid reasons, we find no
merit in this appeal. The appeal shall accordingly
stand dismissed with no order as to costs.
……………………………………J.
(Lokeshwar Singh Panta)
……………………………………J.
(B. Sudershan Reddy)
New Delhi;
March 31, 2009