Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2010
(Arising out of Special Leave Petition (C) No.22224/09
J & K National Panthers Party ...Appellant(s)
- Versus -
The Union of India and others ...Respondent(s)
J U D G M E N T
GANGULY, J.
1. Leave granted.
2.
Jammu and Kashmir National Panthers Party, a
recognized political party in the State of Jammu
and Kashmir has filed this appeal before this
Court seeking to impugn the judgment of Jammu
nd
and Kashmir High Court, dated 2 of June 2009.
1
The High Court dismissed both the writ petitions
which raised identical questions. They were
heard together and disposed of by the impugned
judgment.
3.
The main thrust of the challenge before the High
Court, as well as before this Court is on the
following question: whether or not the action of
the government in postponing the delimitation of
territorial constituencies of the State
pertaining to the Legislative Assembly until the
relevant figures published after the first
census taken after 2026 is legally sustainable?
4.
In fact the appellant is aggrieved by an
amendment to the Jammu and Kashmir
Representation of the People Act 1957,
especially the amendment in Section 3 thereof.
This amendment has been brought about in 2002.
Section 3 of the Jammu and Kashmir
Representation of the People Act 1957
2
(hereinafter the said Act), as amended from time
to time, is set out below :-
“3. Constitution of Delimitation Commission
(1) {As soon as may be after the completion
of each census} the Government shall
constitute a Commission to be called the
Delimitation Commission which shall consist
of three member as follows:
(a) two members, each of whom shall be a
person {who is or has} been a judge of the
Supreme Court or of a High Court in India;
and
(b) a Deputy Election Commissioner
nominated by the Chief Election
Commissioner:
{Provided that until the relevant figures
for the first census taken after the year
2026 have been published, it shall not be
necessary to constitute a Commission to
determine the delimitation of Assembly
Constituencies in the State under this sub-
section}
(2) The Governor shall nominate one of the
members appointed under clause (a) of sub-
section (1) to be the Chairman of the
Delimitation Commission.
(3) The Delimitation Commission shall
determine the delimitation of Assembly
Constituencies in the State within such
period as may be specified by the
Governor.”
5.
There has been a corresponding amendment also in
the sub-section 3 of Section 47 of the
Constitution of Jammu and Kashmir, 1957,
3
(hereinafter referred to as Constitution of J &
K). Section 47 (3) as amended is set out below :-
“ 47(3) Upon the completion of each census,
the number, extent and boundaries of the
territorial constituencies shall be
readjusted by such authority and in such
manner as the Legislature may by law
determine:
Provided that such readjustment shall
not effect representation in the
Legislative Assembly until the dissolution
of the then existing Assembly {;Provided
that until the relevant figures for the
first census taken after the year 2026
have been published, it shall not be
necessary to readjust the total number of
seats in the Legislative Assembly of the
State and the division of the State into
territorial constituencies under this sub-
section}.”
6.
The main grievance of the appellant seems to be
that in view of the postponing of the
delimitation of the constituencies as a result
of the aforesaid amendments, the growing
imbalance in the matter of composition of
various constituencies would continue despite
the census operation being carried out. It has
been argued before this Court that normally the
delimitation exercise is consequent upon a
4
census operation. As a result of the census
operation the composition of the population is
reflected. That gives rise to an exercise in
delimitation for a proper representation of
rights of the people in a democratic polity. The
further contention is that without these
demographical changes being properly reflected
in the composition of constituencies by way of a
delimitation exercise, the essence of democracy
will be defeated in the election. The appellant,
therefore, urge that without an exercise in
delimitation immediately upon the completion of
census operation, the election in the State of
Jammu and Kashmir will not reflect the true
voice of democracy and the popular view would,
therefore, be gagged and would not find a proper
representation.
7. In this case we are not concerned much with any
factual controversy. In this case the Court has
been called upon to decide the correctness or
5
otherwise of contention of the appellant in the
context of the relevant laws and the
constitutional provisions.
8.
Admittedly, in the State of Jammu and Kashmir,
the census operation was completed in 2001, but
the delimitation was done in 1995.
9.
At present in the State of Jammu and Kashmir
there are 87 constituencies. Out of that 46 are
in Kashmir Valley, 37 in Jammu and 4 are in
Ladakh region. Under Section 47(1) of the
Constitution of J & K, it is provided that the
Legislative Assembly shall consist of 111
members chosen by direct election from
territorial constituencies of the State. Under
proviso to Section 47 of the Constitution of J &
K, it is provided that if the Governor is of the
opinion that women are not adequately
represented in the assembly, he may nominate not
more than two women members. However, it is
6
provided in Section 48 of the Constitution that
until the area of the State which is under the
occupation of Pakistan ceases to be so occupied
and the people residing in that area elect their
representatives, those 24 seats in the
Legislative Assembly shall remain vacant for
Pakistan occupied Kashmir and will not be taken
into account for counting the total membership
of the assembly. The said area would be excluded
in delimiting the territorial constituencies of
the state.
10.
The learned Counsel, Professor Bhim Singh,
appearing for the appellant submits that of the
37 constituencies in Jammu, some are reserved
for Scheduled Castes and Scheduled Tribes
whereas of the 46 constituencies in Kashmir
valley, not a single one is reserved for
Scheduled Castes and Scheduled Tribes. But if
the census operation is properly perused, it
becomes clear that some of the constituencies in
7
the Kashmir valley should also have been
reserved for Scheduled Castes and Scheduled
Tribes, had a delimitation exercise been
conducted on the basis of census operation. The
impugned amendment is, therefore, unfair,
undemocratic and unconstitutional as it seeks to
defer the delimitation exercise only upon the
declaration of census results after 2026.
11.
In the writ petition filed before the High Court
no substantial challenge has been made to the
amendment of the Constitution of the J & K. In
the writ petition in paragraph 16, very vaguely
this challenge has been made and which is set
out below:
“16. If no Delimitation Commission is
constituted till 2026, it would mean that
there will be no rotation of the Assembly
constituencies till the census in 2031. It
would mean that reserved Assembly
constituencies shall not be rotated from
1996 to 2031 i.e. for 35 years reserved
seats shall not be changed. This is an
unparallel (sic) instance of the massacre
of the rule of law, the principles of the
natural justice and of course, denial of
justice and equity guaranteed by Article
8
14 and Article 21 of the Constitution of
India. This Act violates the letter of
spirit of Section 47 among other
provisions as well as that of the J & K
Representation of the People Act.”
12.
In the prayers made in that Writ Petition,
prayers B and C have become infructuous. Prayer
D is aimed at Section 47 of the Constitution of
J & K but we do not find adequate pleading
challenging the amendment to Section 47 of the
Constitution of J & K.
13.
Professor Bhim Singh submitted that he was
arguing this case on behalf of about 10, 143,
700 people (as per 2001 Census) of Jammu and
th
Kashmir. He stated that on 27 October 1947,
Jammu and Kashmir became a part of India and on
th
26 January 1957, the Constitution of Jammu and
Kashmir was adopted. He also urged that in view
of Article 370 of the Constitution of India,
autonomy has been granted to the State of Jammu
and Kashmir. The learned counsel repeatedly
9
harped on the question that not holding of a
delimitation exercise immediately after the
completion of the census as a result of the
aforesaid amendment is unconstitutional. In
fact, the learned counsel argued that the said
amendment to the Constitution of J & K was
itself violative of the Basic Structure of the
Constitution of India as applicable to the State
of Jammu and Kashmir, as well as the
Constitution of J & K.
14.
Dealing with the aforesaid arguments of the
appellant (petitioner before the High Court),
the Division Bench of the High Court, inter
alia, held that delimitation for the purpose of
dividing the State into single member
territorial constituency maybe a Basic Feature
of democracy contemplated in the Constitution.
However, High Court opined that the readjustment
of the extent and boundaries of such territorial
constituency upon completion of each census was
neither a mandate of the Constitution, nor the
10
essence of democracy as per the Basic Structure
doctrine of the Indian Constitution.
15.
The High Court dealt with the decision of the
Supreme Court of the United States of America in
the case of Charles W. Baker vs. Joe C. Carr
reported in 369 US 186. In this decision, the
plaintiffs who were entitled to vote to elect
members of Tennessee legislature filed a class
action for a declaration that Tennessee
Apportionment Act of 1901 was unconstitutional
as it violated the 14th Amendment of the
Constitution of the United States. It was
alleged that the impugned act sought to bring
about a gross disproportion of representation to
the members of the public in respect of their
voting right. Thus, the Act placed the
plaintiffs in a position of constitutionally
unjustifiable equality. Initially the District
Court, where the case was filed, held that it
lacked jurisdiction to decide the issue.
11
Thereupon, on appeal the Supreme Court reversed
the judgment and remanded the case to the
District Court holding, inter alia, that the
District Court has the jurisdiction in the
matter and also held that the plaintiffs had the
locus to challenge the Tennessee Apportionment
act.
16.
However, Justice Frankfurter and Justice Harlan
dissented and held that the nature of
controversy is unfit for federal judicial
action, and that the existing apportionment was
not so unreasonable so as to offend the equal
protection clause. The majority opinion in that
case was, however, based on the principle of
approximate equality in the voice of every
voter.
17.
In the judgment impugned herein, the High Court
held that our Constitution never contemplated
equality in the value of vote in view of the
12
several other provisions of the Constitution.
Supporting the judgment, the learned Solicitor
General of India drew the attention of this
Court to the various provisions of the
Constitution of India namely, Articles 81, 82
and 170. The learned Solicitor General also
referred to a decision of the Constitution Bench
of this Court in R. C. Poudyal and others vs.
Union of India and others, (1994) Supp 1 SCC
324, wherein this Court examined Article 170 (2)
while dealing with the reservation of 12 seats
for Sikkimese of Bhutia-Lepcha origin in the
State of Sikkim. One of the main questions which
were raised in that case is as follows:
“Whether Section 7(1-A) and Section 25-A
of the Representation of the People Act,
1950 [as inserted by Election Laws
(Extension to Sikkim) Act, 1976 and
Representation of the People (Amendment)
Act, 1980 respectively] and section 5-A
(2) of the Representation of the People
Act, 1951 [as inserted by the
Representation of the People (Amendment)
Act, 1980] providing for reservation of 12
seats, out of 32 seats in the Sikkim
Legislative Assembly in favour of Bhutias-
Lepchas, are unconstitutional as violative
of the basic features of democracy and
13
republicanism under the Indian
Constitution?” (Para 85, page 373 of the
report)
18.
While deciding the said issue, this Court took
into consideration the decisions of the Supreme
Court of the United States in Charles W. Baker
[supra] , and B. A. Reynolds etc. vs. M. O. Sims
- 377 US 533.
19.
This Court relied on the opinion of Chief
Justice Earl Warren in B.A. Reynolds (supra). At
page 536 of the report the learned Chief Justice
held as follows:-
“……We realize that it is a practical
impossibility to arrange legislative
districts so that each one has an
identical number of residents, or
citizens, or voters. Mathematical
exactness or precision is hardly a
workable constitutional requirement.”
20.
The learned Chief Justice also relied on
historical factors in support of his opinion and
held:-
“History indicates, however, that many
States have deviated, to a greater or
14
lesser degree, from the equal-population
principle in the apportionment of seats in
at least one house of their legislatures.
So long as the divergences from a strict
population standard are based on
legitimate considerations incident to the
effectuation of a rational state policy,
some deviations from the equal-population
principle are constitutionally permissible
with respect to the apportionment of seats
in either or both of the two houses of a
bicameral state legislature.” (page 537 of
the report)
21.
After relying on the aforesaid judgments and
noticing the position in Australian Constitution
the majority opinion of this Court was rendered
by Justice Venkatachaliah (as His Lordship then
was). By a remarkably erudite formulation of
principles, His Lordship held:-
“It is true that the right to vote is
central to the right of participation in
the democratic process. However, there is
less consensus amongst theorists on the
propriety of judicial activism in the
voting area. In India, the Delimitation
Laws made under Article 327 of the
Constitution of India, are immune from the
judicial test of their validity and the
process of allotment of seats and
constituencies is not liable to be called
in question in any court by virtue of
Article 329 ( a ) of the Constitution.”
(Para 119, page 383 of the report)
15
22.
It was repeatedly held in Poudyal (supra) that
“a perfectly arithmetical equality of value of
votes is not a constitutionally mandated
imperative of democracy and, secondly, that even
if the impugned provisions make a departure from
tolerance limits and the constitutionally
permissible latitudes, the discriminations
arising are justifiable on the basis of the
historical considerations peculiar to and
characteristic of the evolution of Sikkim’s
political institutions.”
23.
In this case the same is true of the evolution
of the political institutions of Jammu and
Kashmir. This position has been again reiterated
in para 126 in Poudyal’s case in the following
words:
“An examination of the constitutional
scheme would indicate that the concept of
‘one person one vote’ is in its very
nature considerably tolerant of imbalances
and departures from a very strict
16
application and enforcement. The provision
in the Constitution indicating
proportionality of representation is
necessarily a broad, general and logical
principle but not intended to be expressed
with arithmetical precision…The principle
of mathematical proportionality of
representation is not a declared basic
requirement in each and every part of the
territory of India. Accommodations and
adjustments, having regard to the
political maturity, awareness and degree
of political development in different
parts of India, might supply the
justification for even non-elected
Assemblies wholly or in part, in certain
parts of the country. The differing
degrees of political development and
maturity of various parts of the country,
may not justify standards based on
mathematical accuracy.” (Page 385 of the
report)
24.
Even Justice S.C. Agrawal, who partly dissented
with the majority, agreed with the majority
opinion on this aspect of the matter by holding
as under:-
“The principle of one man one vote
envisages that there should be parity in
the value of votes of electors. Such a
parity though ideal for a representative
democracy is difficult to achieve. There
is some departure in every system
following this democratic path. In the
matter of delimitation of constituencies,
it often happens that the population of
one constituency differs from that of the
other constituency and as a result
17
although both the constituencies elect one
member, the value of the vote of the
elector in the constituency having lesser
population is more than the value of the
vote of the elector of the constituency
having a larger population…”. (para 182,
page 402 of the report)
25.
On a perusal of the aforesaid principles as laid
down by this Court in the Constitution Bench
judgment, we are of the opinion that a right to
caste vote is a valuable right but to demand any
uniform value of one’s voting right through the
process of delimitation, disregarding the
statutory and constitutional dispensation based
on historical reasons is not a justiciable
right.
26.
In the context of this question we must keep in
mind the constitutional scheme in Part XV
relating to election. Article 327 of the
Constitution empowers the Parliament to make a
law relating to delimitation of constituencies.
The mandate of Article 329A is that any law
relating to the delimitation of constituencies
18
or the allotment of seats to such constituencies
shall not be called in question in any Court.
Identical provisions have been made in Section
142 of the Constitution of J & K. Section 142(a)
is set out below:-
“ 142. Bar to interference by courts in
electoral matters . – Notwithstanding
anything in this constitution-
(a) the validity of any law relating to
the delimitation of territorial
constituencies for the purpose of electing
members of the Legislative Assembly or the
allotment of seats to such constituencies,
made or purporting to be made under
section 141, shall not be called in
question in any court;”
27.
It is, therefore, clear that there is an express
constitutional bar to any challenge being made
to the delimitation law which is made under
Constitutional provisions. Therefore, the
substantial challenge of the appellant in this
proceeding is not to be entertained by any
Court, including this Court. The other aspect of
the question is that the amendment to Section
47(3) of the Constitution of J & K violates
19
Basic Structure of the Constitution. This
challenge is also not based on a sound
principle.
28.
The judgment of this Court in His Holiness
Kesavananda Bharati Sripadagalvaru v. State of
Kerala and another , (1973) 4 SCC 225, which
introduced the concept of Basic Structure in our
constitutional jurisprudence is the spontaneous
response of an activist Court after working with
our Constitution for about 25 years. This Court
felt that in the absence of such a stance by the
constitutional Court there are clear tendencies
that the tumultuous tides of democratic
majoritarianism of our country may engulf the
constitutional values of our nascent democracy.
The judgment in Kesavananda Bharti (supra) is
possibly an “auxiliary precaution against a
possible tidal wave in the vast ocean of Indian
democracy”.
20
29.
But we must have a clear perception of what the
Basic Structure is. It is hazardous to define
what is the Basic Structure of the Constitution
as what is basic does not remain static for all
time to come. However, the basic features have
been culled out from various pronouncements of
th
this Court. In the 14 Edition of Shorter
Constitution of India by D.D. Basu, these
features have been noted as under:-
“(a) Supremacy of the Constitution.
(a) Rule of law.
(b) The principle of Separation of
Powers.
(c) The principles behind fundamental
rights.
(d) The objectives specified in the
Preamble to the Constitution.
(e) Judicial review; Art.32.;
Arts.226/227.
(f) Federalism
(g) Secularism.
(h) The sovereign, democratic, republican
structure.
(i) Freedom and dignity of the
individual.
(j) Unity and integrity of the Nation.
(k) The principle of equality; not every
feature of equality, but the
quintessence of equal justice
(l) The rule of equality in public
employment.
(m) The ‘essence’ of other Fundamental
Rights in Part III.
(n) The concept of social and economic
justice-to build a welfare State;
part IV in toto.
21
(o) The balance between Fundamental
Rights and Directive Principles.
(p) The Parliamentary system of
government.
(q) The principle of free and fair
elections.
(r) Limitations upon the amending power
conferred by Art. 368.
(s) Independence of the judiciary; but
within the four corners of the
Constitution and not beyond that.
(t)
Independent and efficient judicial
system.
(u) Powers of the Supreme Court under
Arts. 32, 136, 141, 142.
(v)
Effective access to justice.”
(see page 2236-2238)
30.
Of these features ‘free and fair election’ in
Clause (r) comes closest with the question
discussed in this case.
31.
This Court has already held relying on the
Constitution Bench judgment in Poudyal (supra)
that ensuring uniformity in the value of votes
is not a constitutionally mandated imperative of
free and fair election under our constitutional
dispensation. Therefore, the argument on the
question of Basic Structure is also without
substance and is rejected.
22
32.
For the reasons aforesaid, this Court does not
find any merit in the appeal and which is
accordingly dismissed. Parties are left to bear
their own costs.
.......................J.
(G.S. SINGHVI)
.......................J.
(ASOK KUMAR GANGULY)
New Delhi
November 09, 2010
23