| Headnote |
Issue for consideration: Matter pertains to the scope of the Court’s power to issue directions for the grant of proportional representation for the Limboo-Tamang Scheduled Tribes in the House of the People and in the Legislative Assemblies of West Bengal and Sikkim in terms of the mandate of Articles 330 and 332 of the Constitution; and directions to the Delimitation Commission as well as the Election Commission to effectuate the mandate of Art. 332 of the Constitution, in respect of Limboo Tamang Scheduled Tribe, by undertaking necessary changes to the Delimitation Notification of 2006 and the Delimitation Order of 2008.Delimitation Act, 2002 – Delimitation Notification of 2006 under – Petitioners case that 2006 Delimitation Notification did not accommodate the newly inducted Limboo Tamang Scheduled Tribes designated as such under the Amending Act of 2002 – Delimitation Commission if can amend the Delimitation Notification of 2006: Held: In view of Art. 329 of the Constitution, the Delimitation Notification of 2006 cannot be called into question – Any changes to the 2006 Notification, could only have been made in accordance with the Delimitation Act – Act envisages changes/suggestions only until the publication of the final notification, consequent to which, the notification assumes the force of law in supersession of any other law for the time being in force – Delimitation Act only provides for changes prior to the final notification – Once published, the Notification cannot be amended even by the Delimitation Commission under the 2002 Act – Thus, the Delimitation Commission cannot amend the Delimitation Notification of 2006. [Paras 56, 57] Constitution of India – Art. 324 – Powers of the Election Commission under – Scope of: Held: Article 324 vests wide-ranging powers in the Election Commission – Power u/Art. 324, though plenary, is not untrammeled, but is conditioned by the provisions of the statutes governing the field – Power of the Election Commission u/Art. 324 is meant to supplement and not supplant the law made by the Parliament and must be read in harmony with the provisions of the statutes governing the field-which include the Delimitation Act, 2002 and the Representation of People’s Act, 1950. [Paras 58, 60] Representation of People’s Act, 1950 – ss. 8, 10 and 10-A – Election Commission, if can amend the 2008 Order to the extent that they do not provide for reservations for members of the Limboo-Tamang Scheduled Tribe, to incorporate those changes: Held: U/s. 8, the Election Commission is to consolidate Orders made by the Delimitation Commission u/s. 10, 10-A and 10-B of the Delimitation Act – Consolidation has been carried out by the Election Commission and the 2008 Delimitation of Parliamentary and Assembly Constituencies Order is an outcome of this consolidation – Once consolidated in this manner, s. 9 comes into operation which implies that if the Election Commission considers it necessary and expedient, it may consolidate with the 2008 Order “any notification or order relating to delimitation” of constituencies issued u/s. 8A or under any other Central Act, and not all orders and notifications whatsoever – Amending Act of 2002 which designates Limboo-Tamang Scheduled Tribes is enacted u/Arts.341(2) and 342(2) of the Constitution – It does not relate to delimitation, but to designation of certain Castes and Tribes as Scheduled Castes and Tribes for the purpose of Art. 366 – For the Election Commission to act, there must be an order that relates to delimitation issued u/s. 8-A or under a Central Act – Neither of these conditions present as far as the Amending Act of 2002 is concerned, to warrant the exercise of power u/s. 9(1)(aa) – Thus, the RP Act does not envisage a duty vested in the Election Commission to amend the 2008 Order to include the 2002 Amending Act. [Paras 61, 63, 67-70] Representation of People’s Act - s. 9 - Delimitation Act, 2002 – s. 11 – Non-inclusion of the Limboo Tamang Scheduled Tribes in the 2006 Notification and 2008 Order :Held: Non-inclusion of Scheduled Tribes in the two Orders is attributable to the fact that the Constitution itself mandates the delimitation exercise to be carried out in accordance with the figures of the 2001 census alone and that the subsequent changes to the ST Order have not been accordingly assimilated with the 2001 figures – Delimitation exercise undertaken in 2006 could not account for the Amending Act of 2002 – Thus, the non-inclusion of the Limboo Tamang STs is not attributable to a mere error arising out of an inadvertent slip or omission – Non-inclusion arises due to a lack of an enabling statutory provision which would accommodate post-census changes to the delimitation exercise – Omission envisaged by s.9 and s.11 refers to errors or omissions of a ministerial nature – Entirety of the ambit of clause (a) of s. 11(1) is to allow the Election Commission to correct printing mistakes and inadvertent slips or omissions that result in error – This would not extend to making substantial modifications in the delimitation which was made by the Delimitation Commission in the exercise of its statutory power. [Paras 74, 75, 77-79] Constitution of India – Art. 330, 332, 324, 371F – Power of the Court to grant proportional representation – Scope of – Directions sought for the grant of proportional representation for Limboo-Tamang Scheduled Tribes in the House of the People and in the Legislative Assemblies of West Bengal and Sikkim in terms of the mandate of Arts. 330 and 332: Held: s. 8 of the Delimitation Act, mandates that the exercise of the Delimitation Commission’s powers in determining reserved seats be in accordance with the 2001 census having regard to the provisions of Arts 81, 170, 330 and 332 of the Constitution – Delimitation Act or the RP Act do not require consideration of subsequent changes to the composition of the Scheduled Castes or Scheduled Tribes Orders in determining the reserved seats for Scheduled Tribes – Ordinances was promulgated creating certain provisions expressly enabling readjustment of seats by factoring in inclusions/exclusions to the Scheduled Tribe lists – However, legislative efforts in the form of the Ordinances and Bills, did not eventually result in the creation of a legislative framework creating a power to enable the Delimitation Commission and/or the Election Commission to incorporate changes dehors the 2001 census to the Delimitation Orders – Delimitation Act and the Representation of the People Act, as they exist presently, do not create such a legislative framework – For the Court to direct that in addition to the reservation which has been made in s. 7(1A), Parliament must necessarily legislate in a particular manner to provide proportional representation to all the other communities forming a part of the Scheduled Tribes, would be to trench into the legislative domain – No mandamus can be issued to Parliament as a legislating body to enact a legislation or to legislate in a particular manner – These are matters to be factored in by Parliament, at its discretion – Delimitation of Parliamentary and Assembly Constituencies Order 2008 forms the basis of the First and Second Schedules to the RP Act – Delimitation Commission completed its exercise almost fifteen years ago – Nearly fifty-one communities were added after 2001 to the list of Scheduled Tribes until the last census took place in 2011 – Union Government to take recourse to the powers under the Delimitation Act 2002 for the purpose of ensuring that the provisions of Arts 330 and 332 are duly implemented. [Paras 96-98, 100, 101, 103, 105]Constitution of India – Art. 371F – Special provisions with respect to the State of Sikkim – Explained and elucidated. [Paras 82-93] |
