The Supreme Court, in its recent verdict in Kishorchandra Chhanganlal Rathod v. Union of India (2024 INSC 579) has asserted the power of judicial review over the Delimitation Commission’s orders, marking a bold and crucial step towards fortifying democratic principles in Indian electoral jurisprudence.
While adjudicating an appeal from the Gujarat high court, a two-judge divisional bench of the apex court, comprising Justice Surya Kanth and Justice Ujjal Bhuyan, held that nothing ousts the constitutional courts from scrutinising the validity of orders passed by the Delimitation Commission on the touchstone of the constitution, especially if an order is found to be “manifestly arbitrary” and “irreconcilable to constitutional values”.
While the law specifically contained under the Delimitation Act 2002, or the very Constitutional provisions u/A 329, when applied literally by the earlier precedents, tend to put a complete bar on the interference of courts in electoral issues in general and the delimitation of electoral constituencies in particular, the court in this ruling adopts a counter-majoritarian approach by adopting a purposive interpretation to provide a sound pathway to review the much-contested delimitation concerns that are witnessing increased attention in the recent times.
Factual background and high court ruling
The present issue was instituted by way of an SLP (special leave petition) against a 2012 decision of the Gujarat high court (2012:GUJHC:26442) challenging the delimitation exercise, which resulted in the reservation of the Bardoli legislative assembly constituency for the Scheduled Caste community, which was dismissed by the divisional bench on the grounds of lack of cause of action and by adopting a literal and textual reading of Article 329 (a), to hold that there is an absolute bar on the courts to intervene into delimitation concerns.
Elaborating on the factual controversy therein, vide order dated 12.12.2006, the Delimitation Commission reserved the Bardoli assembly seat from ST to SC constituency, although the majority population (as per 2001 Census) contained 1,99,225 ST voters and only 35,563 SC voters.
Since the largest population was of STs, as per Section 9(1)(d) of the 2002 Act and Clause 3 of the Guidelines and Methodology for Delimitation of Assembly and Parliamentary constituencies, the seat was required to be reserved for ST candidates. Yet the Delimitation Commission published its order under Section 10(2) of the 2002 Act (Order No. 33), which also received the Presidential assent subsequently and, therefore, rendered to be a law made under Article 327. Hence, the high court goes with the reasoning that once the commission’s order has been notified, Article 329 completely bars any judicial interference.
This reasoning of the high court largely emanates from a textualist reading of Article 329(a) r/w Section 10(2) of the Delimitation Act, 2002, and a misreading of the authoritative precedent in Meghraj Kothari v. Delimitation Commission (1966 SCC Online SC 12), which is an anathema to the conducting of free and fair elections, which are the backbone of Indian democracy.
Purposive interpretation through the ‘touch-stone of the constitution’
On a perusal of this brief six-page order, the apex court’s divisional bench quite categorically breaks the shackles of the above-discussed legal obstacles without even scrutinising the facts on merit to clarify that those provisions cannot be construed and interpreted it cannot be construed to have imposed the bar on courts on every and any action of the delimitation exercise.
From a consequentialist perspective, the court highlights the adverse consequences that would emanate from imposing an absolute bar on judicial review, i.e., leaving the citizens without any forum to plead their grievances, leaving them at the sole discretion of the Delimitation Commission. This, according to the court, is antithetical to the very function and duty of a constitutional court, which should act as a guardian of public interest. It is herein that the court’s counter-majoritarian role becomes apparent.
While judicial precedents or jurisprudence around delimitation of constituencies has not been largely developed yet, to add principled backing to this reasoning, the court pragmatically relies on similarly placed facts in the DMK v. State of T.N [(2020) 6 SCC 548] to rely on the manner in which the similarly worded delimitation provisions under Articles 243O and 243ZG has been interpreted. While these two provisions, u/A 243O and ZG, are pari materia to Article 329, which also places an exactly similar bar on the interference of courts in Delimitation exercises in third-tier governments (Panchayats and Municipalities, respectively), the three-judge bench of the Supreme Court noted that a constitutional court could intervene for facilitating the elections or when a case for mala fide or arbitrary exercise of power is made out.
It moreover notes that simply because a proceeding calls into question a matter pertaining to elections, there is no embargo under Art 243O and 243ZG, especially when the substance of the dispute is for “expeditious completion of prerequisites of a fair election”. This very ruling is progressive in the manner in which the court uses “expeditiousness” as a ground for entertaining proceedings against delimitation orders rather than getting swayed away by the logic in the Meghraj Kothari ruling that invalidated judicial review for causing further delay in the election process.
Distinguishing Meghraj Kothari: A pragmatic exercise
In general parlance, upon a textual perusal of the constitutional and statutory provisions around delimitation, it is apparent that one concludes that courts are completely barred from entertaining these disputes. A similar restrictive reading of the landmark constitutional bench ruling in Meghraj Kothari v. Delimitation Commission (1966 SCC Online SC 12) further adds teeth to this democracy-restraining reasoning.
The issue therein pertained to a similar set of facts, i.e., concerning the declaration of a general assembly constituency seat as a reserved SC seat. Since this order was notified by the Delimitation Commission u/s 10(1) of the 2002 Act by adopting a literal interpretation of Sec 10(2), which renders every such order published in the official gazette to attain the force of law and not to be called in question before any court of law, the five-judge bench refused to intervene in the commission’s orders. The logic that the court relied on therein was thus: “If the orders made u/s 8 and 9 were not to be treated as final, the effect would be that any voter if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court.” (Para 20).
Therefore, a purposive reading of this logic, as the apex court does herein, would clarify that the constitutional bench’s concern was not to completely shield the Delimitation Commission from judicial scrutiny but to prevent further delay of the electoral process due to flagrant litigation. In fact, a similar reasoning is adopted by another divisional bench ruling of the apex court in the Election Commission of India v. Ashok Kumar (2000 (8) SCC 216), wherein answering to what extent Article 329 (b) has an overriding effect on Article 226 of the constitution, i.e., on the question of judicial review over Election Commission’s orders, the court enumerates a two-stage test-
“(i) the order sought from the Court did not have the effect of retarding, interrupting, protracting or stalling the counting of votes and the declaration of the results, (ii) a clear case of mala fides on the part of Election Commission inviting intervention of the Court was made out, that being the only ground taken in the petition.”
This was precisely what the court herein opines that manifest arbitrariness when not resulting in effecting the expediency of the election process is a valid reason for extending judicial review over delimitation commission. In the absence of such a purposive interpretation, the divisional bench’s role would have been curtailed or criticised on the grounds of judicial propriety, as it could neither over-rule the constitutional bench’s verdict nor cast doubt on a larger bench’s ruling.
Ruling aligns with the comparative context
While the jurisprudence around delimitation is not elaborated in the Indian context, a comparative analysis of foreign courts’ reasoning would assist in construing this verdict’s progressive and transformative nature.
The UK Court of Appeals in the landmark R v Boundary Commission for England ([1983] EWCA Civ J0125-2) ruled that if institutions involved in the delimitation process exercise arbitrary power, then “the courts can and will intervene in defence of the ordinary citizen.”
Furthermore, in Shaw v. Reno [509 U.S. 630 (1993)], the US Supreme Court ruled that electoral districts whose boundaries cannot be explained except on the basis of race can be challenged as potential violations of the equal protection clause. Both these verdicts replicate the two limbs of manifest arbitrariness and irreconcilable to constitutional values, which the Indian Supreme Court adopts.
While there is an Independent Boundaries Commission in almost all nations, but where everything is politicised in India, the manner in which the commission behaves is the crucial concern. In these circumstances, rendering voters remediless in a court of law as antithetical to the very principle of legitimate democracy.
‘Touch-stone of the constitution’: Pathway for settling future concerns
India conducted periodic delimitation from 1951 to 1971, but further delimitation was frozen through the 42nd Constitutional Amendment in 1971 to encourage population control. This freeze was extended from 2001 until 2026 by the 84th Constitutional Amendment. As a result, the number of parliamentary seats remains unchanged until at least 2031, when the new delimitation will be carried out after the upcoming 2026 Nationwide census.
While the legislative intent was to achieve uniform population growth across states, the Southern states, which have successfully controlled their population, now face the risk of losing representation to Northern states like Uttar Pradesh and Bihar, where population growth has been higher, raising significant concerns about equitable representation in the parliament and in shaping national policies, especially due to the fiscal discrimination that the Southern States are alleging.
In one of my previous papers, I argue for a performance-based approach to delimitation of electoral constituencies, addressing the quintessential concerns of “effective representation” as opposed to a mere population-centric proportional representation. Before this verdict was pronounced, the court’s jurisdiction was misconstrued to have been ousted by Article 329 in electoral matters, including in delimitation.
However, with such significant political ramifications, coupled with the quintessential effective representation, being the basics of democracy, going for a toss, judicial intervention under the broader ambit of “touchstone of democracy” is a promising step that provides an effective remedy for Southern states to take judicial recourse to the political representation-based discrimination that they allege to face.
Conclusion
Delimitation of electoral constituencies is fundamental for a democracy and rendering it remediless reduces the faith in parliament as an institution and democracy as an ideal, especially in light of the partisan political considerations and instances of religious gerrymandering and malapportionment in the recent Jammu and Kashmir and Assam delimitation exercises.
This recent ruling by the Supreme Court of India, invoking judicial review over the Delimitation Commission’s orders, marks a bold and crucial step by breaking the long-standing barriers, ensuring transparency and accountability in the delimitation process, and reinforces the judiciary’s role as a guardian of citizens’ rights.
Though brief at just six pages, this judgment of the apex court is both concise and potent, delivering a well-reasoned and robust decision that leaves no room for doubt or ambiguity. Delicate and contested separation of powers principle, adjudicating the bona fides and mala fides which would have otherwise retarded the court from adjudicating, have quite eloquently been interpreted to further the larger principles of democracy and fair electoral jurisprudence. A continued misreading would only result in an anathema to the conducting of free and fair elections, which are the backbone of Indian democracy.
Mokshith Bhyri is a fourth-year law student at NALSAR University of Law, Hyderabad.
