Infant Thomas vs The Election Commission Of India
2021 Latest Caselaw 4576 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

     TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                       WP(C).No.1153 OF 2021(T)

PETITIONER:

               INFANT THOMAS,
               MATTEL HOUSE, MACHIPLAVU, ADIMALY, IDUKKI.

               BY ADVS.
               SRI.P.P.JACOB
               SMT.MARIYAM JACOB

RESPONDENTS:

      1        THE ELECTION COMMISSION OF INDIA,
               NIRVAJEN SAJAN, ASHOKA ROAD, CHANAKYAPURI,
               NEW DELHI-110001,
               REPRESENTED BY ITS SECRETARY.

      2        THE CHIEF ELECTION COMMISSION,
               KERALA ELECTION DEPARTMENT,
               KERALA LEGISLATIVE COMPLEX, VIKAS BHAVAN,
               THIRUVANANTHAPURAM-695033.

      3        THE CENTRAL GOVERNMENT OF INDIA,
               REPRESENTED BY ITS CABINET SECRETARY TO CENTRAL
               GOVERNMENT, RASHTRAPATHI BHAVAN, NEW DELHI-110001.

      4        THE STATE OF KERALA,
               REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
               GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

      5        THE NATIONAL HUMAN RIGHTS COMMISSION,
               MANAV ADHIKAR BHAWAN, BLOCK-C, GPO COMPLEX, INA, NEW
               DELHI-110023.

      6        THE KERALA STATE HUMAN RIGHTS COMMISSION,
               4TH FLOOR, TURBO PLUS TOWER, PMG ROAD JUNCTION, NEAR
               PMG, THIRUVANANTHAPURAM-695033.

               BY ADVS. SRI.MURALI PURUSHOTHAMAN, SC, ELE.COMMN.
                        SMT.PRINCY XAVIER, GOVERNMENT PLEADER
                        SRI.P.VIJAYAKUMAR, ASGI

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION             ON
09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.1153 OF 2021(T)

                                         2


                                JUDGMENT

The petitioner claims to be a resident

of Adimali in Idukki district. His grievance is

that the Devikulam Assembly Constituency has

been reserved for Scheduled Caste category from

1960 onwards.

2. According to petitioner, only 10.4% of

the population in Devikulam Constituency belongs

to Scheduled Caste community and that the total

population is 1,68,876 as per the data he has

collected as on 2019. According to him, there is

no justification for continuing the reservation

for more than 60 years. Therefore he complains

that his right to contest Election in the

General category is lost on account of the

continuous reservation of the said Constituency

for Scheduled Caste community. He therefore

seeks a direction to the 1st respondent to

consider and dispose of Ext.P1 representation, WP(C).No.1153 OF 2021(T)

before issuing notification of Election to the

Assembly Constituency in Kerala.

3. Sri.Murali Purushothaman, the learned

Standing Counsel has filed a statement on behalf

of the respondents 1 and 2, raising objection as

to maintainability of the writ petition, in view

of the bar imposed on interference by Courts

under Article 329(a) of the Constitution of

India and in the light of the the judgment of

the Constitution bench of the Apex Court in

Meghraj Kothari v. Delimitation Commission [AIR

1967 SC 699]. The relevant contentions in the

statement, read as follows:

        "     xxx
        4.    The    Delimination    Commission       of   India     in

exercise of its powers under Sections 4(2), 9(2) and 10(1) of the Delimination Act, 2002 has passed an order dated 16-05-2005 vide its notification No.282/KL/2005 delimiting the Assembly and Parliamentary Constituencies in the State of Kerala. The said order has been published in the Gazette of India and re-published in the official WP(C).No.1153 OF 2021(T)

Gazette of Kerala on 31-05-2005. As per the said delimination order '88-Devikulam Assembly constituency in Idukki District in the State of Kerala is reserved for Scheduled Caste. Upon publication in the gazette, every such order shall have the force of law and shall not be called in question in any Court in view of Article 329(a) of the Constitution of India.

5. xxx

6. xxx

7. Article 170(3) provides that upon completion of each census, the total number of seats in the Legislative Assembly of each State and the division of each State into territorial constituencies shall be re-adjusted by such authority and in such manner as parliament may by law determine. The Census Commissioner of India published the relevant figures of the 2001 census on 31-12-2003 and on the basis of such figures the Delimitation Commission of India delimited the Parliamentary and Assembly constituencies in India under the Delimitation Act, 2002 and the final delimitation order delimiting the Assembly and Parliamentary constituencies in Kerala was published on 31-05-2005.

8. Section 9(1)(c) of the Delimitation Act, 2002 provides that the Delimitation Commission shall delimit the Constituencies and the Constituencies in which seats are WP(C).No.1153 OF 2021(T)

reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large. Going by the provisions contained under Article 332 of the Constitution of India and Section 9(1)(c) of the Delimitation Act, 2002 and the guidelines and methodology for delimitation of Constituencies seats have to be reserved for the Scheduled Castes and Scheduled Tribes in proportion to their population to the total population of the State. This allocation of seats for the SC and ST was worked out by the Delimitation Commission separately both for the Assembly and Parliamentary Constituencies in each State, on the basis of 2001 Census. SC seats were reserved in those Constituencies in the District in which, so far as practicable, the percentage of their population to the total population is the largest, in descending order equal to the number of SC seats in the District concerned.

9. xxx

10. It is submitted that, as stated above, the entitlement of seats in the district as well as SC and ST seats in a State is purely arithmetical calculation based on the Census Figures 2001. As per the above calculations, the number of seats to be reserved for SCs WP(C).No.1153 OF 2021(T)

in the State of Kerala, on the basis of 2001 census figures as published by the Registrar General of India, are as follows:

(A) Total No. of seats for SCs in Kerala Legislative Assembly = Total SC population (3123941)/ Total population (31841374) x Total Assembly seats (140)=13.74=14.

                   (B) Total No. of seats for SCs of
                   Kerala     Lok    Sabha      =   Total             SC
                   population          (3123941)/                Total

population (31841374) x Total Lok Sabha seats (20)=1.96=2.

The entitlement of SC seats in Idukki District = population of SCs in Idukki District (159445)/the population of SCs in the State (3123941) X number of assembly seats reserved for SCs in the State(14))=01.71=1.

From the above calculation, it is submitted that Idukki District is entitled to one SC seat. Further, in Idukki District there are Five Assembly Constituencies out of which 88-Devikulam has maximum percentage of SC population (28.10) and has, therefore, been reserved for SCs.

11. xxx

12. From above table it can be seen that the total population of Idukki District as per 2001 Census is 1128894. The total Scheduled Caste population is 15,9445. The total Scheduled Tribe population is 50973. WP(C).No.1153 OF 2021(T)

Therefore as evident from the above table, from out of the five Assembly Constituencies in Idukki, Devikulam Assembly Constituency has the largest percentage of Scheduled Caste population. In Devikulam Assembly Constituency, the total population is 212207. The Scheduled Caste population in Devikulam Assembly Constituency is 59636. The percentage of Scheduled Caste population in Devikulam Assembly Constituency is 28.10. Peerumade Assembly Constituency is having the second largest percentage of Scheduled Caste population with 23.29%. Therefore, going by the provisions contained under Article 332 of the Constitution of India and Section 9(1)(c) of the Delimitation Act, 2002, the Delimitation Commission has reserved Devikulam Assembly Constituency for Scheduled Castes. The said delimitation and reservation of seat for Scheduled Castes cannot therefore be assailed on merits also.

13. As submitted, the final delimitation order delimiting the Assembly and Parliamentary constituencies in Kerala was published on 31-05-2005. The 2nd proviso to Article 170(3) provides that such re-adjustment shall take effect from such date as the President may by order specify and until then election to the Legislative Assembly may be held on the basis of the territorial constituencies existing before such re-adjustment. In exercise of the powers under Articles 82 and WP(C).No.1153 OF 2021(T)

170(3) of the Constitution of India the President of India has specified the date on which readjustment notified by the Delimitation Commission in terms of Sections 8 and 9 of the Delimitation Act, 2002 shall take effect and as per the Presidential Order dated 19-02-2008 the delimitation order in respect of State of Kerala has been given effect from 19-02-2008. Now such readjustment of seats has been 'Constitutionally frozen' till the census figures after 2026 is published as per the 3rd proviso to Article 170(3).

14. Thus, the final delimitation order delimiting the Parliamentary and Assembly constituencies in Kerala published on 31-05- 2005 has come into force from 19-02-2008 and all elections to Parliament and Assembly in the State of Kerala after 19-02-2008 were held pursuant to such delimitation. As per the said delimitation order '88-Devikulam Assembly constituency in Idukki District in the State of Kerala is reserved for Scheduled Caste on the basis of the provisions of Article 332 of the Constitution of India and Section 9(1)(d) of the Delimitation Act, 2002. The same cannot be readjusted till the census figures after 2026 is published as per the 3rd proviso to Article 170(3).

xxx"

WP(C).No.1153 OF 2021(T)

4. Sri. Murali Purushothaman, the learned

Standing Counsel also relied on the judgment of

the Division Bench of this Court in Sathyan v.

Election Commission of India and Others [2008

(4) KHC 245], in which an identical issue was

considered in respect of Vaikom Constituency in

Kottayam district. Relying on the Constitution

bench judgment in Meghraj Kothari's case

(supra), this Court concluded that it would not

be open for this Court to reconsider the issue

as the Apex Court has in Meghraj Kothari's case

(supra), considered the very same issue. It was

concluded that judicial review is ousted in the

light of the judgment of Apex Court and also the

judgment of the Division Bench in Chief

Electoral Officer v. Sunny Joseph [2005 (4) KLT

599]. The learned Standing counsel has also made

available the copies of the notification issued

on 31.05.2005 by the Delimitation Commission of WP(C).No.1153 OF 2021(T)

India, published in Kerala Gazette dated

31.05.2005. It is evident from it that the said

notification was issued after issuing a draft

notification inviting objections in Gazette

dated 23.03.2005 and after considering all the

objections and suggestions and public hearing

that the said notification was issued. Devikulam

Constituency is at serial no.88 therein, in

Idukki district with Adimali, Kanthalloor,

Mankulam, Marayoor, Munnar, Pallivassal,

Vattavada and Vellathuval Panchayats in

Devikulam Taluk and Baisonvally and Chinnakanal

Panchayats in Udumbanchola Taluk.

5. Though the learned Counsel for the

petitioner relying on the order dated 10.01.2012

of the Honourable Supreme Court in Writ Petition

(Civil) No.540 of 2011 argued that the

representations submitted by the petitioner

requires consideration, I am of the view that in WP(C).No.1153 OF 2021(T)

the light of the judgment of the Constituition

Bench in Meghraj Kothari's case (supra), this

Court would not be justified in issuing such a

direction under Article 226 of the Constitution

of India. It is also relevant to the note

contained in the 3rd proviso to Article 170(3)

of the Constitution of India, which reads as

follows:

"170. Composition of the Legislative Assemblies.--(1) Subject to the provisions of Article 333, the Legislative Assembly of each State shall consist of not more than five hundred, and not less than sixty, members chosen by direct election from territorial constituencies in the State.

(2) For the purposes of clause (1), each State shall be divided into territorial constituencies in such manner that the ratio between the population xxxxxx (3) Upon the completion of each census, the total number of seats in the Legislative Assembly of each State and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine:

WP(C).No.1153 OF 2021(T)

Provided that such readjustment shall not affect representation in the Legislative Assembly until the dissolution of the then existing Assembly:

Provided further that such readjustment shall take effect from such date as the President may, by order, specify and until such readjustment takes effect, any election to the Legislative Assembly may be held on the basis of the territorial constituencies existing before such readjustment: Provided also that until the relevant figures for the first census taken after the year 2026 have been published, it shall not be necessary to readjust--

(i) the total number of seats in the Legislative Assembly of each State as readjusted on the basis of the 1971 census; and

(ii) the division of such State into territorial constituencies as may be readjusted on the basis of the 2001 census, under this clause."

In such circumstances, the grievance of

the petitioner, warrants consideration only

after the next Census, which would be conducted

in 2026, when further orders would be passed in WP(C).No.1153 OF 2021(T)

2031. Therefore in the light of the 3rd proviso

to Article 170(3) of the Constitution of India

as interpreted by the Constitution bench of the

Supreme Court in Meghraj Kothari's case (supra)

as well as statutory provisions contained in

Section 10, 9 and 4 of the Delimitation Act,

2002, read with the order made by the

Delimitation Commission under the aforesaid

provisions published in the Gazette dated

31.05.2005, which is having statutory force,

interference of this Court is not called for in

the present case.

In the aforesaid circumstances, the writ

petition is only to be dismissed.

              Ordered accordingly.                       Sd/-

                                                   P.V.ASHA
                                                     JUDGE
  ww
 WP(C).No.1153 OF 2021(T)





                           APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1           TRUE   PHOTOCOPY OF  THE  REPRESENTATION

SUBMITTED TO THE FIRST RESPONDENT DATED 2.1.2021.

EXHIBIT P2 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED TO THE SECOND RESPONDENT DATED 2.1.2021.

EXHIBIT P3 TRUE PHOTOCOPY OF THE ACKNOWLEDGEMENT CARD SHOWING THE RECEIPT OF EXT.P2.

EXHIBIT P3 TRUE PHOTOCOPY OF THE ORDER IN WRIT (REPLY AFFIDAVIT) PETITION (CIVIL) NO.540/2011 DATED 10.1.2021.

EXHIBIT P4 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED TO THE FIFTH RESPONDENT DATED 2.1.2021.

EXHIBIT P5 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED TO THE SIXTH RESPONDENT DATED 2.1.2021.

EXHIBIT P6 TRUE PHOTOCOPY OF THE POSTAL RECEIPT ISSUED TO THE PETITIONER DATED 4.1.2021.