Dravida Munnetra Kazhagam (DMK) vs Secretary Governors Secretariat and Others

IA No. 182868/2019 in CIVIL APPEAL NOS. 5467­5469/2017

DRAVIDA MUNNETRA KAZHAGAM (DMK) .....APPELLANT(S)

VERSUS

SECRETARY GOVERNORS SECRETARIAT .....RESPONDENT(S) AND ORS.

WITH

M.A. No.2328/2019 in W.P.(C) No.1267/2018 (With IA No. 183503/2019 and IA No. 183515/2019 and IA No. 163332/2019 and IA No. 183506/2019 and I.A. Nos.186721 and 186722 of 2019 and I.A. No.185943 of 2019)

WITH

Contempt Petition (C) Diary No(s).38969/2019 in W.P.(C) No.1267/2018

WITH W.P.(C) No.1411/2019 (IA No.183815/2019, IA No.185955/2019, IA No.183813/2019)

WITH W.P.(C) No.1415/2019

WITH W.P.(C) No.1413/2019 (I.A. No. 183819/2019) Signature Not Verified

Digitally signed by CHARANJEET KAUR Date: 2019.12.06 12:15:11 IST Reason:

WITH W.P.(C) No.1418/2019 Page | 1 WITH W.P.(C) No. 1417/2019 (IA No.185986/2019 and IA No.185985/2019)

WITH

W.P.(C) No. 1420/2019 (IA No.185976/2019 and IA No.185974/2019)

AND

Writ Petition (C) Diary No.43683 of 2019

JUDGMENT

These Interlocutory Applications have been filed seeking

directions for compliance with the Constitutional mandate concerning

elections to local bodies. The lead applicant, Dravida Munnetra

Kazhagam (DMK), is appellant in the Civil Appeal Nos. 5467­5469 of

2017, wherein an order of the Madras High Court refusing to issue

certain directions to the Tamil Nadu State Election Commission (“State

Election Commission”) is under challenge before us. It is also the

principal Opposition party in the Legislative Assembly of the State of

Tamil Nadu and is a recognised State­party.

2. In the Civil Appeal DMK claimed that the party­in­power at the

State level, the AIADMK, has deliberately been postponing elections;

unconstitutionally been altering constituencies and refusing to effect

rotation with the object of gaining undue political advantage. They

Page | 2 have claimed that Articles 243­D and 243­T mandated that

delimitation of constituencies be conducted after every decadal census

and concomitant reservations be effected for Scheduled Castes and

Scheduled Tribes on a ‘rotation’ basis. In so far as the Tamil Nadu

Panchayats (Second Amendment) Act, 2016 allowed the next cycle of

local elections in Tamil Nadu to be conducted as per the earlier 2001

Census, it contravened Constitutional provisions and was thus liable

to be struck down.

3. The aforestated issues have, however, been rendered academic

by constitution of a Delimitation Commission under the newly

enacted Tamil Nadu Delimitation Commission Act, 2017. This

Commission initiated an elaborate exercise of delimitation on 25 th

July, 2017 and eventually formulated a draft ward delimitation

proposal on 20th September, 2017. Thereafter, written objections were

invited from the public, various political parties and organisations

between 20th December, 2017 and 18th January, 2018. After

considering such objections/suggestions and the revised proposals

received from District Delimitation Authorities, the Delimitation

Commission sent its final recommendation to the State Government

on 31st August, 2018. Thereafter, a notification was issued by the

State Government on 14th December, 2018 whereby the wards newly

delimited per the 2011 Census figures were notified.

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4. Thereafter, on 20th February, 2019 the Delimitation Commission

forwarded proposals for reservation, whereupon post consideration,

the State Government vide notifications dated 20 th May, 2019, 21st

May, 2019 and 24th May, 2019 notified reserved seats for rural and

urban local bodies in the State.

5. It is noteworthy that soon after on 12 th November, 2019 the State

Government issued a notification dividing four existing districts of

Tamil Nadu to create nine new districts. Vellore district was

trifurcated into the districts of Vellore, Tirupathur and Ranipet;

Kancheepuram was bifurcated into Kancheepuram and Chengalpet;

Villupuram was bifurcated into Villupuram and Kallakurichi; and

Tirunelveli was bifurcated into Tirunelveli and Tenkasi districts.

Resultantly, some talukas were also re­structured with certain

revenue villages either being added or removed. Para 7 of the

aforestated notification then reads as follows:

“7. The delimitation of the territorial wards of Village Panchayats, Panchayat Union and District Panchayats have already been notified under the Tamil Nadu Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994) and thereby the delimitation exercise for the ensuing local body elections has already been completed. Notwithstanding the notification to bifurcate the Districts, the process started already to conduct the ensuing Local Body Elections will be continued as per the order of the Hon’ble Supreme Court dated 17.07.2019 in W.P. (C) No. 1267/2018. After the ensuing Local Body Elections, the process of

Page | 4 modification, if any, with regard to local bodies will be taken up by the Government.”

6. As is apparent from the above extract, there is a pointed

reference to this Court’s order dated 17th July, 2019 in W.P.(C) No.

1267 of 2018. This Order was delivered in M.A. No. 2328 of 2019

which was filed by the State Election Commission and reads as under:

“On 2nd July, 2019, this Court had passed the following

order:­

“The respondent No.1, the Tamil Nadu State Election Commission, shall file an affidavit within two weeks hence, indicating the time within which the delimitation exercise that is stated to be at an advance stage, will be completed and when elections to the local bodies can be held.”

List the matter on 17th July, 2019.

Pursuant thereto, an affidavit dated 15th July, 2019, has been filed by the Secretary, Tamil Nadu State Election Commission.

We have perused the said affidavit and we are satisfied with the grounds mentioned therein, which explain the delay in completion of the delimitation exercise and in issuing the notification in respect of local bodies elections. We have also taken note of the fact that in paragraph 28, the Secretary of the State Election Commission has stated that the notification announcing the schedule of the election will be published in the last week of October, 2019.

In view of the aforesaid statement made before the Court in the affidavit filed by the Secretary of the State Election

Page | 5 Commission, we permit the State authority to act in the manner as undertaken before the Court i.e. publish the election notification in the last week of October, 2019.........”

7. Thereafter this Court passed the following order on 18 th

November, 2019.

“List on 13.12.2019, by which time we hope and expect that Notification will be issued after completing all legal formalities.

Dr. Abhishek Manu Singhvi, learned Senior Counsel states that there are some connected matters, i.e., SLP(C) Nos. 28881­28883/2016 and batch.

List all the connected matters together before the appropriate Bench, after obtaining orders from Hon’ble the Chief Justice of India.”

8. In purported deference to the above reproduced Orders, the

State Election Commission on 2nd December, 2019 announced the

Programme of Elections for all Panchayats at the village, intermediate

and district levels, which is as follows:

PROGRAMME OF ELECTION

1.

Publication of public notice of election and 06.12.2019 commencement of receipt of nominations

2. Last date of making nominations 13.12.2019

3. Scrutiny of nominations 16.12.2619

4. Withdrawal of candidates 18.12.2019

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5. Dates of Poll Phase – I 27.12.2019 Phase ­ II 30.12.2019

6. Date of commencement of counting of votes 02.01.2020

7. Date before which the election shall be 04.01.2020 completed

8. Date on which the first meeting of the newly 06.01.2020 elected ward members shall be held for assumption of office by taking oath or affirmation

9. Date of which the meeting of the ward members 11.01.2020 shall be held for the election of Vice­Presidents or Chairman and Vice­Chairman, as the case may be.

9. The notified election programme further provides as follows:

“Posts for Direct Elections:

Direct election would be held to fill up the total of 1,18,974 posts in Rural Local bodies, out of which

 655 Posts of Village Panchayat Ward members within 31 District Panchayats;

 6,471 Posts of Panchayat Union Ward Members within 388 Panchayat Unions;

 12,524 Posts of Village Panchayat Presidents and 99,324 posts of Village Panchayat Ward Members are included.

Political Party Based Elections and Non­political Party based Elections:

The election to the posts of Village Panchayat Presidents and Village Panchayat Ward Members will be as Non­Political Party based Elections; the election to the posts of District Panchayat Ward Members and Panchayat Union Ward Members will be as Political party based Election.

Page | 7 Indirect Elections:

Indirect Elections to the following posts will be held on 11.01.2020 through the elected representatives of the local bodies.

Posts of Chairman of District 31 Panchayat Council Posts of Vice­Chairman of District 31 Panchayat Council

Posts of Chairman of Panchayat 388 Union Council Posts of Vice­Chairman of 388 Panchayat Union Council Posts of Vice­President of Village 12,524 Panchayat President 13,362

10. It thus emerges that before the election process could begin as

per the Sate Election Commission’s Press Release dated 2 nd December,

2019, the State of Tamil Nadu increased the number of districts from

31 to 39 and also restructured various talukas. However, with regard

to posts of Chairman and Vice­Chairman of District Panchayat

Councils, elections are still sought to be held only for 31 posts. This

resultant incongruity has prompted the appellants to file these

applications with prayers to strike down the Notification dated 2 nd

December, 2019; hold elections for the entire State comprising all 39

Revenue Districts; and conduct such local body elections only after

Page | 8 completion of all legal formalities i.e. after delimitation of the newly

carved districts. A specific direction has also been prayed for, to

compel the respondents to first carry out delimitation, reservation,

rotation processes and fulfil all other legal requirements before

notifying or conducting elections of any panchayat at the village,

intermediate or district level.

11. Having heard learned counsel for the parties at a considerable

length and after an indepth analysis of various Statutory provisions as

well as the constitutional scheme under Part IX which envisages

democratisation of grass­root level administration, we are of the view

that, as per Article 243­B, panchayats have to mandatorily be

constituted in a State at the village, intermediate and district levels.

Article 243­C requires the State, as far as is practicable, to maintain a

similar ratio between the population residing within the territory of a

particular panchayat and the number of seats allocated to it, across

all panchayats in the State. Further, each panchayat must be divided

into territorial constituencies and per Article 243­D, seats in

proportion to their population must be reserved for Scheduled Castes

and Scheduled Tribes in each panchayat.

12. It is thus clear that the constitutional object of Part IX cannot be

effectively achieved unless the delimitation exercise for constitution of

local bodies at all levels is properly undertaken. Such exercise in the

Page | 9 State of Tamil Nadu must keep in view the criteria for delimitation of

wards prescribed under the Tamil Nadu Local Bodies Delimitation

Regulations, 2017 (formulated under the Tamil Nadu Delimitation

Commission Act, 2017), which criteria must itself not be contrary to

Article 243­C read with Article 243­B(1) of the Constitution.

13. Noticing how at the completion of the delimitation process there

were only 31 revenue districts, but despite a subsequent increase in

number of districts to 39, no fresh delimitation exercise has been

undertaken, it is clear that the State Government cannot fulfil the

aforestated Constitutional mandate. There is no identified data

elucidating population proportions and hence requisite reservation for

Scheduled Castes and Scheduled Tribes cannot be provided for, both

in re village panchayat wards or Chairman/Vice­Chairman of District

bodies. We hence have no doubt that the election process as notified

by the State Election Commission on 2 nd December, 2019, in respect of

the newly constituted nine districts cannot be held unless fresh

delimitation exercise in respect thereto is first completed. The State

Government cannot justify holding local body elections of these nine

districts by relying upon this Court’s order dated 18 th November, 2019

as the said order itself mandates notification of elections only after

completing “all legal formalities”.

Page | 10

14. The contention of the respondents that the present proceedings

amount to “calling in question an election” and hence not being

maintainable in view of the express constitutional embargos of Articles

243­O and 243­ZG does not impress us for the present proceedings

are only to further the expeditious completion of pre­requisites of a

fair election. Hence, the following ratio of a coordinate Bench in

Election Commission of India v. Ashok Kumar and Others [2000

(8) SCC 216] squarely applies to the present case:

“(2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well­ settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body been shown to have acted in breach of law.

(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered

Page | 11 irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.”

15. For the reasons aforestated, these applications are allowed in

part and disposed of with the following directions:

a. The Respondent­authorities shall hold elections to all Panchayats at village, intermediate and district levels, except those in the following nine reconstituted districts:

i. Kancheepuram ii. Chengalpattu iii. Vellore iv. Thirupathur v. Ranipet vi. Villupuram vii. Kallakurichi viii. Tirunelveli ix. Tenkasi;

b. The Respondents (including the Delimitation Commission) are directed to delimit the nine newly­ constituted districts in accordance with law and thereafter hold elections for their panchayats at the village, intermediate and district levels within a period of four months;

c. There shall be no legal impediment against holding elections for Panchayats at the village, intermediate and district levels for rest of the districts;

d. State Election Commission shall notify elections for the panchayats at village, intermediate and district levels in respect of all districts except the nine re­constituted districts as per the details given in direction ‘a’ above.;

Page | 12 e. While conducting elections, the respondents shall provide proportionate reservation at all levels, in accordance with the Rule 6 of Tamil Nadu Panchayats (Reservation of Seats and Rotation of Reserved Seats) Rules, 1995.

16. In all fairness, we must note that the learned Advocate General of

Tamil Nadu has also agreed to proceed with the election process as

directed above.

17. Since, the only grievance raised in the main appeals was that the

local body elections ought be held on the basis of the 2011 Census

and not of 2001; and considering how the respondents have already

used the 2011 Census while conducting the latest delimitation

exercise (except in the newly re­constituted nine districts), these

appeals have been rendered infructuous and are disposed of

accordingly.

18. All pending I.As. also stand disposed of accordingly.

……………………….. CJI.

(S. A. BOBDE)

………………………… J.

(B.R. GAVAI)

…………………………. J.

(SURYA KANT) NEW DELHI DATED : 06.12.2019

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