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J&K High Court · body

2009 DIGILAW 281 (JK)

National Panthers Party (J&K) v. Union Of India

2009-06-02

BARIN GHOSH, MANSOOR AHMAD MIR

body2009
Barin Ghosh, Chief Justice 1. Though the two petitions, raising identical questions of law, are clubbed together, we would first deal with WP(PIL) no. 24/2007 and the conclusions arrived at by us therein will govern the connected writ petition, WP(PIL) no.23/2007. 2. The writ petition, WP(PIL) no. 24/2007, in the nature of Public Interest Litigation, by a political party, seeks to challenge validity of the action to postpone delimitation of territorial constituencies of the State pertaining to Legislative Assembly of the State until the relevant figures for the first census taken after the year 2026 have been published. 3. The State Constitution, which directs that the Legislature for the State shall consist of the Governor and two Houses to be known, respectively, as the Legislative Assembly and Legislative Council, mandates that the Legislative Assembly shall consist of one hundred and eleven members chosen by direct election from territorial constituencies of the State. For that purpose the Constitution mandates that the State shall be divided into single member territorial constituencies by such authority and in such manner as the Legislature may by law determine. It further mandates that elections to the Legislative Assembly shall be on the basis of adult suffrage. It authorises the Legislature to make law with respect to all matters relating to, or in connection with, elections to either House of the Legislature, including preparation of electoral rolls, the delimitation of the constituencies, appointment of Election Tribunal and all other matters necessary for securing the due constitution of the two Houses. 4. At the same time, the Constitution provides that until the area of the State under the occupation of Pakistan ceases to be so occupied, and the people residing in that area elect their representatives, twenty-four seats in the Legislative Assembly shall remain vacant and shall not be taken into account for reckoning the total membership of the Assembly and the said area would be excluded in delimiting the territorial constituencies of the State. 5. The Constitution provides reservation of seats for Scheduled Castes to the extent the same bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes bears in the population of the State. The expression `population in terms of the Constitution means the population as ascertained at the last preceding census of which the relevant figures have been published. The expression `population in terms of the Constitution means the population as ascertained at the last preceding census of which the relevant figures have been published. 6. The State Legislature made the Jammu and Kashmir Representation of the People Act, 1957. The said Act takes into account, amongst others, matters pertaining to delimitation of constituencies. In section 3 of the said Act, it has been provided that as soon as may be, after the completion of each census, the Governor shall constitute a Commission to be called the Delimitation Commission, consisting of members as mentioned therein. In 2002 a proviso was added to section 3 of the said Act, whereby the right of the Governor to constitute Delimitation Commission was postponed until relevant figures for the first census taken after the year 2026 have been published. Immediately prior thereto, by a Constitutional Amendment, a proviso was inserted in Sub-section (3) of Section 47 of the Constitution, whereby it was provided that until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to adjust the total number of seats in the Legislative Assembly of the State and the Division of the State into territorial constituencies under that sub-section. By inserting a proviso to sub-section (1) of Section 49 of the Constitution, similarly, the population figure to be taken note of for ascertaining reservation of seats for Scheduled Castes was put on hold until the relevant figures for the first census to be taken after the year 2026 have been published. 7. It is the contention of the petitioner that the proviso so inserted in sub-section (3) of Section 47 of the Constitution does not keep on hold delimitation until the first census is taken after 2026. Alternatively it was submitted that if the proviso so inserted suggests withholding of delimitation until the relevant figures for the first census taken after 2026 have been published, the proviso, being contrary to the basic feature of the Constitution, should be declared ultra vires. Alternatively it was submitted that if the proviso so inserted suggests withholding of delimitation until the relevant figures for the first census taken after 2026 have been published, the proviso, being contrary to the basic feature of the Constitution, should be declared ultra vires. It is also the contention of the petitioner that a look at the Constitution of the State would show that the basic feature of the Constitution is democracy and periodical delimitation being sine qua non of democracy, postponement thereof for such a long period of time, fractures the basic concept of democracy, and, as such, impinges upon the basic feature of the Constitution. 8. In order to buttress the alternative contention, many facts and figures were brought on record by the petitioner and people who sought to support such contention of the petitioner. We refused to look into those. Similarly, many facts and figures were also brought on record by people opposing the alternative contention of the petitioner. We also refused to look into the same. According to us, the contention was whether the proviso, in fact, postponed delimitation until the time mentioned above and, if so, whether the same affected democracy, which, it was not urged by any one, is not the basic feature of the Constitution. We, accordingly, thought that the writ petition raises a pure and simple question of law and should be answered on that basis, and, to find answer for the same, we are not required to look into any fact or figure. 9. The petition was filed in the Jammu Wing of the High Court. Apart from the writ-petitioner, many others showed keen interest in the matter. We, accordingly, in addition to the writ petitioner, heard others who wanted to make their submissions. While the hearing was in progress at Jammu Wing of the High Court, request was made by many other persons similarly interested in the matter, but residing at Srinagar, to enable them to make submissions. We, accordingly, heard all those interested persons at the Srinagar Wing of the High Court. We also heard the learned Advocate General at Jammu as well as at Srinagar. Lastly, we heard the writ petitioner in reply at Jammu. 10. In course of hearing, two basic questions were raised as regards maintainability of the writ petition. We, accordingly, heard all those interested persons at the Srinagar Wing of the High Court. We also heard the learned Advocate General at Jammu as well as at Srinagar. Lastly, we heard the writ petitioner in reply at Jammu. 10. In course of hearing, two basic questions were raised as regards maintainability of the writ petition. It was contended that a writ petition in the nature of public interest litigation by a political party is not maintainable. It was also contended that a writ petition by a political party, challenging Constitutional Amendment, is also not maintainable. We would first, therefore, deal with these two contentions. 11. In Janta Dal v H. S. Choudhary, reported in AIR 1993 SC 892, the Honble Supreme Court was considering the scope of public interest litigations. While doing so, the Honble Supreme Court observed that it has widely enlarged the scope of public interest litigations by relaxing and liberalising the rule of standing by treating letters and petitions sent by any person or association complaining violation of any fundamental right and is also entertaining writ petitions filed under Article 32 of the Constitution by public spirited and policy oriented activist persons or journalists or of any organization. Therefore, in view of the pronouncement of law so made, public interest litigations are also entertainable when the same are filed by public spirited and policy oriented activist persons of any organization. The writ petition though has been filed by a political party, but no doubt the petitioner itself is a political organization. A political party, which is a political organization, registered with the Election Commission, by reason of the mandatory requirements of being so registered is required to be an association of public spirited and policy oriented activist persons. We would, therefore, hold that public interest litigation in the form of the present petition, filed by the writ petitioner-political party, is maintainable. 12. We would, therefore, hold that public interest litigation in the form of the present petition, filed by the writ petitioner-political party, is maintainable. 12. In the case of Guruvayoor Devaswom Managing Committee v C. K. Rajan, (2003) 7 SCC 546, the Honble Supreme Court has given guidelines as regards maintainability of writ petitions in the nature of public interest litigation and, while doing so, observed as follows: "Ordinarily, the High Court should not entertain a writ petition by way of public interest litigation questioning the constitutionality or validity of a Statute or a statutory rule." The Honble Supreme Court used the word `ordinarily and, thereby made it clear that the High Court may entertain a writ petition by way of public interest litigation, questioning the constitutionality or validity of a statute or statutory rule. In what circumstances a High Court may entertain such a writ petition, however, has not been elaborated. If democracy is one of the basic features of the Constitution, with which we are concerned here, every person, who may be associated with such democracy, while he is entitled to uphold the same, can question any action of amending the Constitution affecting such democracy. The writ petitioner, being a political party, is no doubt a part of the democracy enshrined in the Constitution with which we are concerned. That being the situation, the petition in the nature of public interest litigation, filed by the writ petitioner to uphold democracy by questioning the action of amending the said Act and the Constitution, which, according to the petitioner, affects such democracy, we think, is maintainable. 13. It was contended that the writ petition involved personal interest of the petitioner-political party. It was urged that the writ petitioner has filed the writ petition to better its political image. It was contended, accordingly, the writ petition was seeking to canvass a political cause. It was also contended that the writ petitioner was a mere busy-body or meddlesome interloper who has approached the Court under the guise of public interest litigation. We personally feel that in the event the writ petition is allowed and postponement of delimitation is quashed, the writ petitioner will not get any personal benefit. Similarly, if the political decision as reflected through the amendment is not permissible, the same can be challenged. We personally feel that in the event the writ petition is allowed and postponement of delimitation is quashed, the writ petitioner will not get any personal benefit. Similarly, if the political decision as reflected through the amendment is not permissible, the same can be challenged. We also feel that the petitioner, being a political party, is entitled to uphold the political structure as mandated by the Constitution and, accordingly, if it contends that the political structure, as mandated by the Constitution, has been affected by insertion of the said provisos in the said section of the Act and of the Constitution, the writ petitioner cannot be said to be a busybody or meddlesome interloper, who has approached the Court in the guise of a public interest litigation. 14. It was urged that the petitioner was a party to the action of incorporating the proviso in the Constitution challenged in the writ petition, inasmuch persons belonging to the Organization of the writ-petitioner, who were then members of the Legislative Assembly, were present when the Bill was passed authorising insertion of the proviso by the amendment in question. It was contended that in such circumstances, the writ petitioner is estopped from challenging insertion of the said proviso in the Constitution. While such submission was made, it was not submitted that the persons representing the writ petitioner, who were then members of the Legislative Assembly, were of such number that without their support the amendment could not be effected. In the circumstances, it is not acceptable to us that the persons associated with the petitioner, who were members of the Legislative Assembly, then played such a role in introducing the amendment that they are estopped from challenging the same on the ground that the same is beyond the amending power of the Legislative Assembly. 15. It was also contended that members of the petitioner, who were members of the Legislative Assembly, at some point of time introduced a Bill in the Legislative Assembly for putting the clock back by deleting the amendment in the Constitution, impugned, but failed. It was contended that the writ petitioner thus having taken the chance before the Legislative Assembly, cannot turn around and question the amendment. The power to amend the Constitution vests in the Legislature. It was contended that the writ petitioner thus having taken the chance before the Legislative Assembly, cannot turn around and question the amendment. The power to amend the Constitution vests in the Legislature. Legislative Assembly was, therefore, one of the appropriate forums to seek what was sought for by the members of the writ petitioner in the Legislative Assembly, as contended. They thus exhausted the remedy that was available to them. It is one thing to take a chance before an authority and later on take a U-turn and contend that the authority was incompetent; and it is another thing to approach the authority that is competent to redress and then to contend that the authority has not redressed what was otherwise redressable. In the latter case, the principle of law that having had taken a chance before an authority, the person is estopped from contending that the authority was incompetent is not applicable. 16. It was also contended that before filing the present writ petition, the petitioner had filed a petition under Article 32 of the Constitution of India before the Honble Supreme Court. The said petition having been withdrawn, the petitioner is not entitled to seek remedy under Article 226 of the Constitution of India. We have looked into the order of the Honble Supreme Court of India permitting withdrawal of the petition under Article 32 of the Constitution of India, which made it absolutely clear that withdrawal of the said petition will not prevent the writ petitioner from seeking redress before appropriate forum. Therefore, we do not accept the contention that the present writ petition is barred by the principles of resjudicata, as was sought to be contended. 17. We would, therefore, deal with the merit of the contentions. In the event the proviso added to sub-section (3) of Section 47 of the Constitution does not authorise postponement of delimitation until the figures for the first census taken after the year 2026 have been published, then the proviso inserted in the said Act, postponing delimitation until then would be without authority of law and, accordingly, it would be appropriate on our part to first consider whether the proviso so inserted in sub-section (3) of Section 47 of the Constitution did provide for such postponement or not. We would, therefore, have to look into Section 47 of the Constitution in its entirety. We would, therefore, have to look into Section 47 of the Constitution in its entirety. The same is set out below: "Composition of Legislative Assembly: (1) The Legislative Assembly shall consist of one hundred and eleven members chosen by direct election from territorial constituencies in the State; Provided that the Governor may, if he is of opinion that women are not adequately represented in the Assembly, nominate not more than two women to be members thereof. (2) For the purposes of sub-section (1), the State shall be divided into single member territorial constituencies by such authority and in such manner as the Legislature may by law determine. (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 be 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 the territorial constituencies under this sub-section." Immediately before insertion of the last proviso to sub-section (3) of Section 47 of the Constitution, the other provisions of Section 47 of the Constitution, as reproduced above, remained intact. We would be required to ascertain whether the last proviso to sub-section (3) of Section 47 of the Constitution, in fact, postponed delimitation until the period mentioned above, by reading Section 47 as a whole. 18. It was contended in support of the petition that the mandate in sub-section (1) of Section 47 of the State Constitution is that the members of the Legislative Assembly shall be chosen by direct election and that such choice has to be exercised in territorial constituencies in the State. It was contended that the principal direction contained in sub-section (2) of Section 47 is to divide the State into single member territorial constituencies. It was contended that the principal direction contained in sub-section (2) of Section 47 is to divide the State into single member territorial constituencies. It was submitted that a joint reading of sub-sections (1) and (2) of Section 47 would make it clear that as many members mentioned in sub-section (1) of section 47 would constitute the Legislative Assembly, there shall be so many territorial constituencies and the State shall be divided into as many constituencies. It was submitted that division of the State into that many number of territorial constituencies is delimitation. It was submitted that delimitation, therefore, is ingrained in those sub-sections. It was contended that the mandate contained in sub-section (3) of Section 47 is continuous delimitation. It was submitted that the principal mandate in sub-section (3) of Section 47 is to make delimitation by way of adjustment of the extent and boundaries of territorial constituencies upon completion of each census. It was further submitted that the last proviso inserted by the impugned amendment only prevents change in the number of members of the Legislative Assembly until the relevant figures for the first census taken after the year 2026 have been published, and not to stop delimitation upon completion of each census, as is the principal mandate contained in sub-section (3) of Section 47 of the Constitution. It was stated that though the proviso so inserted mentions that the division of the State into territorial constituencies under sub-section (3) of the said Section shall not be necessary until the relevant figures for the first census taken after the year 2026 have been published, but sub-section (3) of Section 47 does not talk about division of the State into territorial constituencies; instead, directs readjustment of, amongst others, the extent and boundaries of territorial constituencies, and that readjustment and division are not the same actions, therefore, the proviso so inserted does not authorise postponement of delimitation by way of readjustment until the relevant figures for the first census taken after the year 2026 have been published. 19. 19. Alternatively, it was contended that the said proviso befits sub-section (1) of Section 47, inasmuch as Section 47 specifies the number of members of the Legislative Assembly, who are to be chosen by direct election from territorial constituencies in the State, and the proviso keeps the number of such members fixed until the period mentioned therein and in such view of the matter, until such time the number remains the same, it is not necessary to divide the State as the State has already been divided into territorial constituencies. 20. In the further alternative, it was contended that the proviso though uses the word "sub-section", but it must be read to control the Section itself. In other words, since the number of members remains the same, it is not necessary to re-divide the State into territorial constituencies commensurate with such number, as division has already taken place. 21. The submissions, as made, require us, therefore, to read down or to shift or to interfere with the proviso in question. Since we are dealing with a provision of the Constitution, we cannot do any of them. We are bound by the words used in the Constitution. We are bound by the position of the proviso as it stands inserted in the Constitution. We are not entitled to subtract or add any word to any part of the proviso. We can, however, declare that the words used in the proviso convey what meaning. It was, however, not urged that the proviso, with which we are concerned, does not convey any meaning. Our duty, as a Constitutional Court, is to interpret the Constitution and to cull out what it purports to convey. 22. There is no dispute that sub-section (1) of Section 47 of the Constitution specifies the number of members of the Legislative Assembly who shall be chosen by direct election from territorial constituencies in the State. At the same time, sub-section (2) of Section 47 mandates that the State shall be divided into single member territorial constituencies to the extent of the number of members of the Legislative Assembly, as mentioned in sub-section (1) of Section 47. At the same time, sub-section (3) of Section 47 mandates that upon completion of each census, the number of the territorial constituencies shall be readjusted and, at the same time, extent and boundaries of the territorial constituencies shall also be readjusted. At the same time, sub-section (3) of Section 47 mandates that upon completion of each census, the number of the territorial constituencies shall be readjusted and, at the same time, extent and boundaries of the territorial constituencies shall also be readjusted. Therefore, the Constitution provides that, upon completion of each census, it may be possible to increase or decrease the number of members of the Legislative Assembly. If the number of members of the Legislative Assembly is either increased or decreased, in terms of the requirement contained in sub-section (2) of Section 47, the State is required to be divided into single member territorial constituencies corresponding to number of members of the Legislative Assembly. If the number is not increased or decreased, despite that sub-section (3) of section 47 mandates that the extent and boundaries of territorial constituencies shall be readjusted upon completion of each census. Inasmuch as the number of members of the Legislative Assembly remains the same until the relevant figures for the first census taken after the year 2026 have been published, no doubt, it would not be necessary to make an effort to divide the State into territorial constituencies. The question is, does the proviso say it shall not be necessary to re-adjust the extent and boundaries of the territorial constituencies until the relevant figures for the first census taken after the year 2026 have been published? Though it does not say so in so many words. 23. The argument in support of the petition is that it does not; whereas the argument against the petition is that it does. 24. The direction contained in sub-section (3) of Section 47 is readjustment of the number, extent and boundaries of the territorial constituencies, upon completion of each census. Sub-sections (1) and (2) of Section 47 have fixed the number of territorial constituencies equal to the declared number of members of the Legislative Assembly. Until by way of amendment to the Constitution, the number is readjusted, no authority can do so. Therefore, the number of constituencies can only be readjusted thus, i.e., by a Constitutional amendment, and not either by the Legislature competent to legislate on the basis of the power bestowed upon them by the Constitution, or by any authority created by such Legislature. Therefore, the number of constituencies can only be readjusted thus, i.e., by a Constitutional amendment, and not either by the Legislature competent to legislate on the basis of the power bestowed upon them by the Constitution, or by any authority created by such Legislature. In that background, the real mandate of sub-section (3) of Section 47 is to readjust the extent and boundaries of territorial constituencies of those one hundred and eleven territorial constituencies upon completion of each census. The proviso, in so many words, does not use the word `readjust. But it says that it shall not be necessary to divide the State into territorial constituencies under the said sub-section. We cannot omit to read the word "sub". We can thus read the word "Sub-section", i.e., sub-section (3). Sub-section talks of readjustment, while the proviso talks of division. Since readjustment will affect division, the reasonable conclusion would be that the mandate of the proviso is that it shall not be necessary to readjust the territorial constituencies until the relevant figures for the first census taken after the year 2026 have been published. 25. We are, therefore, of the view that the proviso inserted to sub-section (3) of Section 47 prohibits delimitation for readjustment of the extent and boundaries of the territorial constituencies until the relevant figures for the first census taken after the year 2026 have been published. 26. It was urged that stoppage of readjustment of the extent and boundaries of territorial constituencies affects democracy as enshrined in the Constitution. It was further urged that delimitation is the basic safeguard of healthy democracy. It was contended that democracy, as enshrined in the Constitution, cannot be said to be democracy if delimitation is not done or is postponed for such a long period of time. It was contended that such an action makes democracy cripple and, accordingly, the proviso, being contrary to the basic structure of the Constitution, is beyond the amending power of the Legislature. It was contended that it is the people who are entitled to elect their representatives. It was contended that if delimitation is not done for such a long period of time despite knowledge that population has moved, as may be reflected in the census, the right of the people to elect their representatives is likely to be affected. It was contended that it is the people who are entitled to elect their representatives. It was contended that if delimitation is not done for such a long period of time despite knowledge that population has moved, as may be reflected in the census, the right of the people to elect their representatives is likely to be affected. It was urged that democracy, as contemplated, ensures equal right of each electorate and delimitation is the safeguard thereof. It was contended that postponement of delimitation would interfere with such safeguard. 27. It is true that delimitation in terms of the structure of democracy provided in the Constitution is a must, inasmuch as people of the State are not entitled to have a say in the matter of election of each of the members of the Legislative Assembly mentioned in sub-section (1) of Section 47 of the Constitution, they have right to chose only one such member from one such territorial constituency by such part of the people who are within such constituency. At the same time, it is also true that population at a place is not static; it increases or decreases for many a reason. People move from one place to other and, in particular to greener pastures. It is a known fact that in order to have amenities of cities, people move from villages to cities. Then again, when a census is taken, the location of the people comes to be known. In order to enable the democracy, as contemplated in the Constitution, to remain functional, it has been mandated that upon each census the extent and boundaries of territorial constituencies shall be readjusted. The purpose and object thereof is to ensure that the number of voters in such territorial constituencies remains the same, but that is not a strict mandate. In other words, readjustment of extent and boundaries of territorial constituencies does not require, in the scheme of the Constitution, that each territorial constituency shall have exactly same number of voters. In the Constitution of India, the mandate is `so far as practicable. This mandate was also in the original Constitution of the State before amendment of sub-section (2) of Section 47. In the Constitution of India, the mandate is `so far as practicable. This mandate was also in the original Constitution of the State before amendment of sub-section (2) of Section 47. After amendment of sub-section (2) of Section 47, as it stands now, nothing further has been added to denote, nor any other provision of the Constitution mandates that the number of voters of each territorial constituency must be the same. Though there is a mandate to readjust the extent and boundaries of the territorial constituencies upon completion of each census, but there is no provision either in the Constitution of the State or in the Constitution of India mandating census to be taken. 28. We would, thus, conclude that while delimitation for the purpose of dividing the State into single member territorial constituencies to the extent of number of members of the Legislative Assembly is the mandate of the Constitution and is basic feature of democracy contemplated in the Constitution, but readjustment of the extent and boundaries of such territorial constituencies upon completion of each census is not such a mandate, nor it is contemplated to be the basic structure of democracy contemplated in the Constitution. In the event no census takes place, there would be no readjustment and there being no mandate in the Constitution to take census, readjustment of the extent and boundaries of territorial constituencies is an uncertainty and, accordingly, cannot be said to be the basic feature of democracy contemplated in the Constitution. 29. It was urged and for that matter reliance was placed upon the judgment of the Supreme Court of United States of America in the case BAKER v. CARR, 369 U.S. 186 (1962) [369 U.S. 186], that each voters vote should have the same weight or value. In the case referred to above, a similar contention was upheld, not on the basis that the same is the basic feature of democracy, but applying the equality clause contained in the Constitution of United States of America. The right to equality, as granted to the citizens of this country, does not entail exact equality in the matter of weight of the vote of a voter by reason of the other provisions contained in the Constitution of India containing specific words `so far as practicable in relation to division of territorial constituencies. 30. The right to equality, as granted to the citizens of this country, does not entail exact equality in the matter of weight of the vote of a voter by reason of the other provisions contained in the Constitution of India containing specific words `so far as practicable in relation to division of territorial constituencies. 30. Delimitation of the State having been done by dividing the same into single member territorial constituencies to the extent of the number of members of the Legislative Assembly, postponement of delimitation for readjustment of extent and boundaries of such territorial constituencies until the relevant figures for the first census taken after the year 2026 have been published, being not such essential part of the democracy contemplated in the Constitution that the amendment of the Constitution, authorising the same, can be said to have affected democracy, a basic feature of the Constitution and, accordingly, can be declared to be either ultra vires the Constitution or beyond the amending power of the Legislative Assembly. 31. We would, accordingly, advise us to dismiss the writ petition which we hereby do, however, without any order as to cost. WP(PIL) no.23/2007 is also, accordingly, dismissed. Registry is directed to keep a photocopy of this order on record of that petition. All connected CMPs shall stand disposed of accordingly.