J&K National Panthers Party vs The Union Of India & Ors

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

Kashmir. He stated that on 27th October 1947,

Jammu and Kashmir became a part of India and on

26th 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

this Court. In the 14th 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