In WP (Civil) No. 443 of 2017-SC- ‘Central Government should take a decision with all reasonable dispatch, in accordance with law’, says SC in matter seeking political representation of Limboo and Tamang Scheduled Tribes
Chief Justice D.Y.Chandrachud, Justices J.B. Pardiwala & Manoj Misra[ 23-11-2023]

Read Order: Public Interest Committee for Scheduling Specific Areas and Anr v. Union of India & Ors

LE Correspondent

New Delhi, January 5, 2023: While considering a plea seeking a direction for the grant of proportional representation for Scheduled Tribes in the House of the People as well as the Legislative Assemblies of West Bengal and Sikkim, the Supreme Court has observed that it is for the Union Government to take recourse to powers under the Delimitation Act, 2002 for the purpose of ensuring that the provisions of Articles 330 and 332 of the Constitution are duly implemented.

The petition, before the 3-Judge Bench of Chief Justice D.Y.Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra, sought a direction for upholding the constitutional rights of the Limboo-Tamang Scheduled Tribe to reservation of seats in the Sikkim Legislative Assembly and also directions to amend/strike down the Notification of the Delimitation Commission dated September 4, 2006 and the Delimitation of Parliamentary and Assembly Constituencies Order 2008 to the extent that they do not provide for reservations for members of the Limboo-Tamang Scheduled Tribe.

It additionally sought directions to the effect that Section 7(1A) of the Representation of People’s Act (RP Act) is ultra vires the Constitution for the same reason. The petitioner had put up a request to the Delimitation Commission as well as the Election Commission to effectuate the mandate of Article 332 of the Constitution, in respect of Limboo Tamang Scheduled Tribe, by undertaking necessary changes to the 2006 Notification and the 2008 Order.

It was the case of the petitioners that the 2006 Delimitation Notification was, to the extent that it did not accommodate the newly inducted Limboo Tamang Tribes, not corrected by the Election Commission, in the exercise of its powers under Section 11 of the Delimitation Act. Thus, according to the petitioners, the 2008 Order published by the Election Commission under the Representation of People Act 1950, which was a consolidation of the Orders issued by the Delimitation Commission, was defective to the extent that it did not account for the Amending Act of 2002.

It was submitted that there is a constitutional mandate and the entitlement of the Limboo and Tamang communities as Schedules Tribes which stems from the Amending Act of 2002, whereby they were designated as Scheduled Tribes. Accordingly, it is the plain duty of the Union Government and the Election Commission to act in pursuance of their statutory and constitutional powers. It was urged that to the extent that the 2006 Notification and the 2008 Order and Section 7(1A) of the RP Act do not account for the Limboo and Tamang Scheduled Tribes, they violate this mandate.

On the issue of whether Delimitation Commission can amend the 2006 Notification under the Delimitation Act, the Bench stated that in view of Article 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. The 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. In view of Article 329, the Bench held that it was beyond the realm of judicial review.

The Bench made it clear that the 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.

Next, the Bench considered the issue of power of Election Commission to Amend the 2008 Order to incorporate those changes. It was observed that the Amending Act of 2002 which designates Limboo and Tamang Scheduled Tribes is enacted under Articles 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 the Article 366 of the Constitution.

As per the Top Court, even if the discretion, as apparently vested in the Election Commission to act is taken to be coupled with a duty to act, the duty arises only when the conditions for its exercise are fulfilled. For the Election Commission to act, there must be an order that relates to delimitation and such an order must have been issued under Section 8-A of this Act or under a Central Act.

Considering that neither of these conditions is present as far as the Amending Act of 2002 is concerned, to warrant the exercise of power under Section 9(1)(aa) of the RP Act, the Bench said, “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.”

The petitioners had sought for a mandamus against the Election Commission generally in accordance with Article 332 for the Sikkim State Legislative Assembly, on the strength of Section 9 of the RP Act and Section 11of the Delimitation Act.

Referring to clause (a) of sub-section (1) of Section 11of the Delimitation Act and Section 9 of the RP Act, the Bench opined that he invocation of this clause can take place only if one finds the non-inclusion of the Limboo Tamang Scheduled Tribes in the 2006 Notification and 2008 Order as an “error” arising out of an inadvertent slip or omission. However, the non-inclusion of these 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.

Consequently, the delimitation exercise undertaken in 2006 could not account for the Amending Act of 2002. The Bench opined that this was the specific issue that the Court addressed in Virendra Pratap and Another vs Union of India and Othersby stating that the Election Commission may obtain the relevant figures that were de hors the 2001 census.

Thus, the non-inclusion of the Limboo Tamang STs is not attributable to a mere error arising out of an inadvertent slip or omission- which are the only grounds under which the Orders can be altered by the Delimitation Commission or the Election Commission, the Top Court affirmed. “The entirety of the ambit of clause (a) is to allow the Election Commission to correct printing mistakes and inadvertent slips or omissions that result in error. This, evidently, would not extend to making substantial modifications in the delimitation which has been made by the Delimitation Commission in the exercise of its statutory power”, the Bench said.

The Bench opined that the 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.

“The Delimitation Act and the Representation of the People Act, as they exist presently, do not create such a legislative framework. Absent a statutory duty, this Court is unable to issue a writ of mandamus against the respondents”, the Bench held while further adding, “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 which have to be factored in by Parliament, at its discretion. The judgment of the Constitution Bench in RC Poudyal clearly lays down the road map for the manner in which the Court must approach such a vexed issue.”

The Bench concluded the matter by observing that the delimitation of Parliamentary and Assembly Constituencies Order 2008 forms the basis of the First and Second Schedules to the RP Act. The Delimitation Commission completed its exercise almost fifteen years ago. The Additional Solicitor General submitted that nearly fifty-one communities were added after 2001 to the list of Scheduled Tribes until the last census took place in 2011.

“This is a matter which must engage the attention of the Union Government. The manner in which this exercise would have to be determined within the purview of the Delimitation Act 2002. But as we have already noted earlier, the exercise would require legislative amendments, particularly having regard to the provisions of the First and Second Schedules to the RP Act. Directing a legislative amendment is beyond the domain of judicial review”, the Bench noted.

Considering the fact that in regard to the State of West Bengal, it had been submitted, by the counsel appearing on behalf of the Election Commission that broadly an additional seat would have to be made available in the State of West Bengal for the Scheduled Tribes in order to accommodate the principle of proportional representation, the Bench stated, “The above submission makes it abundantly clear that it is for the Union Government to take recourse to the powers under the Delimitation Act 2002 for the purpose of ensuring that the provisions of Articles 330 and 332 are duly implemented. The Central Government should take a decision with all reasonable dispatch, in accordance with law.”