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Synopsis

The Supreme Court has said there is nothing that precludes a constitutional court to check the validity of orders passed by Delimitation Commission on the touchstone of the Constitution, even though Article 329 undeniably restricts the scope of judicial scrutiny.

A bench of Justices Surya Kant and Ujjal Bhuyan did not approve the view taken by the Gujarat High Court that the order of delimitation of constituencies, issued in exercise of statutory powers under the Delimitation Act, is entirely insusceptible to the powers of judicial review exercisable under Article 226 of the Constitution. 

"Although Article 329 undeniably restricts the scope of judicial scrutiny re: validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, it cannot be construed to have imposed for every action of delimitation exercise," the bench said.

"If judicial intervention is deemed completely barred, citizens would not have any forum to plead their grievances, leaving them solely at the mercy of the Delimitation Commission. As a constitutional court and guardian of public interest, permitting such a scenario would be contrary to the court’s duties and the principle of separation of powers," the court added.

The bench emphasised that a constitutional court can undertake the exercise of judicial review within the limited sphere at an appropriate stage.

Apex Court allowed in part an appeal filed by Kishorechandra Chhanganlal Rathod and set aside the Gujarat High Court's division bench judgment of 2012 which held that there is a bar to challenge the order of delimitation of constituencies. 

The appellant by a writ petition has challenged the delimitation exercise, which resulted into reservation of Bardoli Legislative Assembly Constituency, Gujarat for Scheduled Caste community. The said constituency was reserved by the Delimitation Commission in exercise of its powers under the Delimitation Act, 2002.

The High Court, by its judgment, relied upon Article 329 of the Constitution and held that there is a bar to interference by the court in electorate matters and as such, the appellant’s challenge to the Delimitation Commission’s Order of December 12, 2006, which had received the assent of the President of India, could not be called in question in any court of law. 

The High Court had dismissed the writ petition at the threshold on the anvil of Article 329(a) of the Constitution.

The apex court did not go into merits of the claims finding it not necessary since the delimitation exercise had taken place in 2006 and much water has flown under the bridge since then.

It, however, did not agree to the High Court's view with regard to complete bar on examining such matters.

The court referred to Dravida Munnetra Kazhagam v. State of T.N. (2020), where the court was called upon to interpret Articles 243O and 243ZG of the Constitution, which mirrored the Article 329. 

Rejecting the contention that these provisions placed a complete bar on judicial intervention, it was noted that a constitutional court can intervene for facilitating the elections or when a case for mala fide or arbitrary exercise of power is made out. Using this, the court directed delimitation to be conducted for nine new districts, the bench pointed out.

It further pointed out, recently, a three-judge bench of this Court in State of Goa v. Fouziya Imtiaz Shaikh, (2021) affirmed the ratio of the decision while discussing principles on Article 329(a), and rejected the contention which sought to prove it as per incuriam.

"Therefore, while the courts shall always be guided by the settled principles regarding scope, ambit and limitations on the exercise of judicial review in delimitation matters, there is nothing that precludes them to check the validity of orders passed by Delimitation Commission on the touchstone of the Constitution. If the order is found to be manifestly arbitrary and irreconcilable to the constitutional values, the court can grant the appropriate remedy to rectify the situation," the bench said.

The respondents Union government and others contended any kind of judicial intervention was fully prohibited as they relied upon a Constitution Bench decision of this Court in Meghraj Kothari vs. Delimitation Commission and others (1965).

The bench, however, said a closer examination of the case would show that the court in that case adopted hands-off approach and restricted judicial intervention when the same would unnecessarily delay the election process. 

The court held that the judgement does not support the respondents’ contention regarding complete restriction on judicial review.

The court granted liberty to the appellant to approach the High Court afresh in view of subsequent events. It, however, found no ground to interfere with the exercise of delimitation of constituencies and consequential reservation thereof, undertaken in the year 2006.