DRAVIDA MUNNETRA KAZHAGAM (DMK) versus SECRETARY GOVERNORS SECRETARIAT AND ORS. on 6 December 2019

704

SUPREME COURT REPORTS

[2019] 14 S.C.R.

ADRAVIDA MUNNETRA KAZHAGAM (DMK)

v.

SECRETARY GOVERNORS SECRETARIAT AND ORS.

(IA No. 182868/2019 )

B

In

(Civil Appeal Nos. 5467-5469/2017)

DECEMBER 06, 2019

[S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]C

Constitution of India – Part IX – Arts.243-B, 243-C r/w 243-B(1), 243-O & 243-ZG – Lead applicant (in present IAs) is theappellant in C.A.Nos.5467-5469/17, wherein an order of theMadras High Court refusing to issue certain directions to the TamilNadu State Election Commission was challenged – It was claimedDtherein that the State Government was deliberately postponingelections; unconstitutionally altering constituencies and refusingto effect rotation for gaining undue political advantage – On12.11.2019, the State Government issued notification dividing fourexisting districts of Tamil Nadu to create nine new districts – Inview of deference to various Supreme Court orders, the StateEElection Commission on 02.12.2019 announced the ElectionsProgramme for all Panchayats at the village, intermediate anddistrict levels – Present IAs filed inter alia to strike down the saidNotification and direction to conduct local body elections only afterdelimitation of the newly carved districts – Held: ConstitutionalFobject of Part IX, envisaging democratisation of grass-root leveladministration, cannot be effectively achieved unless thedelimitation exercise for constitution of local bodies at all levelsis properly undertaken – Such exercise in the State of Tamil Nadumust keep in view the criteria for delimitation of wards prescribedunder the 2017 Regulations, which criteria must itself not beGcontrary to Art.243-C r/w Art.243-B(1) – Election process asnotified on 02.12.2019, in respect of the newly constituted ninedistricts cannot be held unless fresh delimitation exercise in respectthereto is first completed – State Government cannot justify holdinglocal body elections of these nine districts by relying upon SupremeCourt’s order dated. 18.11.2019 as the said order itself mandatesH

notification of elections only after completing “all legalformalities”– Directions issued – Further, the only grievance raisedin the main appeals was that the local body elections ought be heldon the basis of the 2011 Census and not of 2001; and consideringhow the respondents have already used the 2011 Census whileconducting the latest delimitation exercise (except in the newly re-constituted nine districts), these appeals are rendered infructuous– Tamil Nadu Panchayats (Second Amendment) Act, 2016 – TamilNadu Delimitation Commission Act, 2017 – Tamil Nadu LocalBodies Delimitation Regulations, 2017 – Tamil Nadu Panchayats(Reservation of Seats and Rotation of Reserved Seats) Rules, 1995– r.6.

Disposing of the IAs, the Court

Conclusion

Disposing of the IAs, the Court

HELD: 1.1 Before the election process could begin asper the Sate Election Commission’s Press Release dated 2[nd]December, 2019, the State of Tamil Nadu increased the numberof districts from 31 to 39 and also restructured various talukas.However, with regard to posts of Chairman and Vice-Chairmanof District Panchayat Councils, elections are still sought to beheld only for 31 posts. As per Article 243-B, panchayats haveto mandatorily be constituted in a State at the village,intermediate and district levels. Article 243-C requires the State,as far as is practicable, to maintain a similar ratio between thepopulation residing within the territory of a particular panchayatand the number of seats allocated to it, across all panchayats inthe State. Further, each panchayat must be divided into territorialconstituencies and per Article 243-D, seats in proportion to theirpopulation must be reserved for Scheduled Castes andScheduled Tribes in each panchayat. The constitutional objectof Part IX cannot be effectively achieved unless the delimitationexercise for constitution of local bodies at all levels is properlyundertaken. Such exercise in the State of Tamil Nadu must keepin view the criteria for delimitation of wards prescribed underthe Tamil Nadu Local Bodies Delimitation Regulations, 2017(formulated under the Tamil Nadu Delimitation Commission Act,2017), which criteria must itself not be contrary to Article 243-C read with Article 243-B(1) of the Constitution. Noticing howat the completion of the delimitation process there were only31 revenue districts, but despite a subsequent increase in AB

C

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EF

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Anumber of districts to 39, no fresh delimitation exercise has beenundertaken, it is clear that the State Government cannot fulfilthe aforestated Constitutional mandate. There is no identifieddata elucidating population proportions and hence requisitereservation for Scheduled Castes and Scheduled Tribes cannotbe provided for, both in re village panchayat wards or Chairman/BVice-Chairman of District bodies. The election process asnotified by the State Election Commission on 2[nd] December,2019, in respect of the newly constituted nine districts cannotbe held unless fresh delimitation exercise in respect thereto isfirst completed. The State Government cannot justify holding Clocal body elections of these nine districts by relying uponSupreme Court’s order dated 18[th] November, 2019 as the saidorder itself mandates notification of elections only aftercompleting “all legal formalities”. The contention of therespondents that the present proceedings amount to “calling inquestion an election” and hence not being maintainable in viewDof the express constitutional embargos of Articles 243-O and243-ZG does not impress, for the present proceedings are onlyto further the expeditious completion of pre-requisites of a fairelection. [Paras 10-14] [712-D-E-H; 713-A-G]

1.2 Directions:

Ea) The Respondent-authorities shall hold elections to allPanchayats at village, intermediate and district levels, exceptthose in the nine reconstituted districts; b) The Respondents(including the Delimitation Commission) are directed to delimitthe nine newly-constituted districts in accordance with law andthereafter hold elections for their panchayats at the village,Fintermediate and district levels within a period of four months;c) There shall be no legal impediment against holding electionsfor Panchayats at the village, intermediate and district levels forrest of the districts; d) State Election Commission shall notifyelections for the panchayats at village, intermediate and districtGlevels in respect of all districts except the nine re-constituteddistricts as per the details given in direction ‘a’; e) Whileconducting elections, the respondents shall provideproportionate reservation at all levels, in accordance with theRule 6 of Tamil Nadu Panchayats (Reservation of Seats andRotation of Reserved Seats) Rules,1995. [Para 15] [714-E-H;H715-A-D]

1.3 The Advocate General of Tamil Nadu has also agreedto proceed with the election process as directed. Since, the onlygrievance raised in the main appeals was that the local bodyelections ought be held on the basis of the 2011 Census and notof 2001; and considering how the respondents have already usedthe 2011 Census while conducting the latest delimitationexercise (except in the newly re-constituted nine districts), theseappeals have been rendered infructuous and are disposed ofaccordingly. [Paras 16, 17] [715-D-F]

Election Commission of India v. Ashok Kumar andOthers (2000) 8 SCC 216 : [2000] 3 Suppl. SCR 34– relied on.

Case Law Reference

[2000] 3 Suppl. SCR 34relied onPara 13

CIVIL APPELLATE/JURISDICTION : I.A. No. 182868 of 2019in Civil Appeal Nos. 5467-5469 of 2017.

From the Judgment and Order dated 21.09.2016 of the HighCourt of Judicature at Madras in Writ Petition (C) Nos. 23411, 23417& 23418 of 2016

With

M.A. No.2328 of 2019 in W.P.(C) No.1267 of 2018, IA Nos.183503, 183515, 163332, 183506, 186721 and 186722, 185943 of 2019,Contempt Petition (C) Diary No.38969 of 2019 in W.P.(C) No.1267/2018, W.P.(C) Nos.1411, 1415, 1413, 1418, 1417, 1420 of 2019, WritPetition (C) Diary No.43683 of 2019

Vijay Narayan, AG, Ms. Narmadha Sampath, Balaji Srinivasan,AAGs, Dr. A.M. Singhvi, Kapil Sibal, Mukul Rohtagi, P.S. Narasimha,Aryama Sundaram, K.V. Vishwanathan, P. Wilson, Sr. Advs., AmitAnand Tiwari, Amit Bhandari, Shashwat Singh, Vivek Singh, Ms. MaryMitzy, R. Neelakandan, M.P. Parthiban, D. Kumanan, Suvendu SuvasisDash, K.V. Jagdishvaran, Ms. G. Indira, Ms. Rangoli Seth, AshwaniKumar, Mrs. Vinitha, Thanga Durai, Vinodh Kanna B., LeninRajaseharan, M. Yogesh Kanna, S. Raja Rajeshwaran, R. Karthikeyan,Ms. Uma Prasuna Bachu, Arjun Singh, Nedunchallian, Rahul G.Tanwani, Ms. Sindoora VNL, Ms. Aditi Tripathi, Ms. Kanti, SudhakaranR., Ms. Pallavi Sengupta, J. Arul Prakasam, Dr. Rajesh Pandey, A

B

C

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E

F

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AR. Nilavazhayan, J. Suresh, Ms. Aswathi M.K., Gowtham Kumar, IshanBisht, Ms. Palak Mahajan, Ms. Ragini Pandey, Rahul Pratap, Advs.for the appearing parties.

The following Judgment of the Court was delivered:

JUDGEMENT

B

1. These Interlocutory Applications have been filed seekingdirections for compliance with the Constitutional mandate concerningelections to local bodies. The lead applicant, Dravida MunnetraKazhagam (DMK), is appellant in the Civil Appeal Nos. 5467-5469 ofC2017, wherein an order of the Madras High Court refusing to issuecertain directions to the Tamil Nadu State Election Commission (“StateElection Commission”) is under challenge before us. It is also theprincipal Opposition party in the Legislative Assembly of the State ofTamil Nadu and is a recognised State-party.

D

D2. In the Civil Appeal DMK claimed that the party-in-power atthe State level, the AIADMK, has deliberately been postponingelections; unconstitutionally been altering constituencies and refusingto effect rotation with the object of gaining undue political advantage.They have claimed that Articles 243-D and 243-T mandated thatEdelimitation of constituencies be conducted after every decadal censusand concomitant reservations be effected for Scheduled Castes andScheduled Tribes on a ‘rotation’ basis. In so far as the Tamil NaduPanchayats (Second Amendment) Act, 2016 allowed the next cycle oflocal elections in Tamil Nadu to be conducted as per the earlier 2001Census, it contravened Constitutional provisions and was thus liable toFbe struck down.

3. The aforestated issues have, however, been rendered academicby constitution of a Delimitation Commission under the newly enactedTamil Nadu Delimitation Commission Act, 2017. This Commissioninitiated an elaborate exercise of delimitation on 25[th] July, 2017 andGeventually formulated a draft ward delimitation proposal on 20[th]September, 2017. Thereafter, written objections were invited from thepublic, various political parties and organisations between 20[th]December, 2017 and 18[th] January, 2018. After considering suchobjections/suggestions and the revised proposals received from DistrictHDelimitation Authorities, the Delimitation Commission sent its final recommendation to the State Government on 31[st] August, 2018.Thereafter, a notification was issued by the State Government on 14[th]December, 2018 whereby the wards newly delimited per the 2011Census figures were notified.

4. Thereafter, on 20[th] February, 2019 the DelimitationCommission forwarded proposals for reservation, whereupon postconsideration, the State Government vide notifications dated 20[th] May,2019, 21[st] May, 2019 and 24[th] May, 2019 notified reserved seats forrural and urban local bodies in the State.

5. It is noteworthy that soon after on 12[th] November, 2019 theState Government issued a notification dividing four existing districtsof Tamil Nadu to create nine new districts. Vellore district wastrifurcated into the districts of Vellore, Tirupathur and Ranipet;Kancheepuram was bifurcated into Kancheepuram and Chengalpet;Villupuram was bifurcated into Villupuram and Kallakurichi; andTirunelveli was bifurcated into Tirunelveli and Tenkasi districts.Resultantly, some talukas were also re-structured with certain revenuevillages either being added or removed. Para 7 of the aforestatednotification then reads as follows:

“7. The delimitation of the territorial wards of Village Panchayats,Panchayat Union and District Panchayats have already beennotified under the Tamil Nadu Panchayats Act, 1994 (Tamil NaduAct 21 of 1994) and thereby the delimitation exercise for theensuing local body elections has already been completed.Notwithstanding the notification to bifurcate the Districts, theprocess started already to conduct the ensuing Local BodyElections will be continued as per the order of the Hon’bleSupreme Court dated 17.07.2019 in W.P. (C) No. 1267/2018.After the ensuing Local Body Elections, the process ofmodification, if any, with regard to local bodies will be taken upby the Government.”

6. As is apparent from the above extract, there is a pointedreference to this Court’s order dated 17[th] July, 2019 in W.P.(C) No.1267 of 2018. This Order was delivered in M.A. No. 2328 of 2019which was filed by the State Election Commission and reads as under:

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CD

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G

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A“On 2nd July, 2019, this Court had passed the following order:- “The respondent No.1, the Tamil Nadu State ElectionCommission, shall file an affidavit within two weeks hence,indicating the time within which the delimitation exercise thatis stated to be at an advance stage, will be completed andwhen elections to the local bodies can be held.”B

List the matter on 17th July, 2019.

Pursuant thereto, an affidavit dated 15th July, 2019, has been filedby the Secretary, Tamil Nadu State Election Commission.

We have perused the said affidavit and we are satisfied with theCgrounds mentioned therein, which explain the delay in completionof the delimitation exercise and in issuing the notification inrespect of local bodies elections. We have also taken note of thefact that in paragraph 28, the Secretary of the State ElectionCommission has stated that the notification announcing theschedule of the election will be published in the last week ofDOctober, 2019.

In view of the aforesaid statement made before the Court in theaffidavit filed by the Secretary of the State Election Commission,we permit the State authority to act in the manner as undertakenbefore the Court i.e. publish the election notification in the lastEweek of October, 2019.........”7. Thereafter this Court passed the following order on 18[th]November, 2019.

“List on 13.12.2019, by which time we hope and expectthat Notification will be issued after completing all legalFformalities.

Dr. Abhishek Manu Singhvi, learned Senior Counsel states thatthere are some connected matters, i.e., SLP(C) Nos. 28881-28883/2016 and batch.

List all the connected matters together before the appropriateGBench, after obtaining orders from Hon’ble the Chief Justice ofIndia.”

8. In purported deference to the above reproduced Orders, theState Election Commission on 2[nd] December, 2019 announced theProgramme of Elections for all Panchayats at the village, intermediateHand district levels, which is as follows:

DRAVIDA MUNNETRA KAZHAGAM (DMK) v.SECRETARY GOVERNORS SECRETARIAT AND ORS.

PROGRAMME OF ELECTION

9. The notified election programme further provides as follows:

“Posts for Direct Elections:

Direct election would be held to fill up the total of 1,18,974 postsin Rural Local bodies, out of which· 655 Posts of Village Panchayat Ward members within 31District Panchayats; 6,471 Posts of Panchayat Union Ward Members within 388Panchayat Unions; 12,524 Posts of Village Panchayat Presidents and 99,324posts of Village Panchayat Ward Members are included.

Political Party Based Elections and Non-political Partybased Elections:

The election to the posts of Village Panchayat Presidents andVillage Panchayat Ward Members will be as Non-Political Partybased Elections; the election to the posts of District PanchayatWard Members and Panchayat Union Ward Members will beas Political party based Election.

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712SUPREME COURT REPORTS

AIndirect Elections:Indirect Elections to the following posts will be held on 11.01.2020through the elected representatives of the local bodies.

10. It thus emerges that before the election process could beginas per the Sate Election Commission’s Press Release dated 2[nd]DDecember, 2019, the State of Tamil Nadu increased the number ofdistricts from 31 to 39 and also restructured various talukas. However,with regard to posts of Chairman and Vice-Chairman of DistrictPanchayat Councils, elections are still sought to be held only for 31posts. This resultant incongruity has prompted the appellants to fileEthese applications with prayers to strike down the Notification dated2[nd] December, 2019; hold elections for the entire State comprising all39 Revenue Districts; and conduct such local body elections only aftercompletion of all legal formalities i.e. after delimitation of the newlycarved districts. A specific direction has also been prayed for, to compelthe respondents to first carry out delimitation, reservation, rotationFprocesses and fulfil all other legal requirements before notifying orconducting elections of any panchayat at the village, intermediate ordistrict level.11. Having heard learned counsel for the parties at a considerablelength and after an indepth analysis of various Statutory provisions asGwell as the constitutional scheme under Part IX which envisagesdemocratisation of grass-root level administration, we are of the viewthat, as per Article 243-B, panchayats have to mandatorily beconstituted in a State at the village, intermediate and district levels.Article 243-C requires the State, as far as is practicable, to maintain aHsimilar ratio between the population residing within the territory of a particular panchayat and the number of seats allocated to it, across allpanchayats in the State. Further, each panchayat must be divided intoterritorial constituencies and per Article 243-D, seats in proportion totheir population must be reserved for Scheduled Castes and ScheduledTribes in each panchayat.

12. It is thus clear that the constitutional object of Part IX cannotbe effectively achieved unless the delimitation exercise for constitutionof local bodies at all levels is properly undertaken. Such exercise inthe State of Tamil Nadu must keep in view the criteria for delimitationof wards prescribed under the Tamil Nadu Local Bodies DelimitationRegulations, 2017 (formulated under the Tamil Nadu DelimitationCommission Act, 2017), which criteria must itself not be contrary toArticle 243-C read with Article 243-B(1) of the Constitution.

13. Noticing how at the completion of the delimitation processthere were only 31 revenue districts, but despite a subsequent increasein number of districts to 39, no fresh delimitation exercise has beenundertaken, it is clear that the State Government cannot fulfil theaforestated Constitutional mandate. There is no identified dataelucidating population proportions and hence requisite reservation forScheduled Castes and Scheduled Tribes cannot be provided for, bothin re village panchayat wards or Chairman/Vice-Chairman of Districtbodies. We hence have no doubt that the election process as notifiedby the State Election Commission on 2[nd] December, 2019, in respectof the newly constituted nine districts cannot be held unless freshdelimitation exercise in respect thereto is first completed. The StateGovernment cannot justify holding local body elections of these ninedistricts by relying upon this Court’s order dated 18[th] November, 2019as the said order itself mandates notification of elections only aftercompleting “all legal formalities”.

14. The contention of the respondents that the presentproceedings amount to “calling in question an election” and hence notbeing maintainable in view of the express constitutional embargos ofArticles 243-O and 243-ZG does not impress us for the presentproceedings are only to further the expeditious completion of pre-requisites of a fair election. Hence, the following ratio of a coordinateBench in Election Commission of India v. Ashok Kumar and Others[2000 (8) SCC 216] squarely applies to the present case:

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SUPREME COURT REPORTS

A

“(2) Any decision sought and rendered will not amount to “callingin question an election” if it subserves the progress of the electionand facilitates the completion of the election. Anything donetowards completing or in furtherance of the election proceedingscannot be described as questioning the election.

B(3) Subject to the above, the action taken or orders issued byElection Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions ofstatutory bodies such as on a case of mala fide or arbitraryexercise of power being made out or the statutory body beenshown to have acted in breach of law.C

(4) Without interrupting, obstructing or delaying the progress ofthe election proceedings, judicial intervention is available ifassistance of the court has been sought for merely to correct orsmoothen the progress of the election proceedings, to removethe obstacles therein, or to preserve a vital piece of evidence ifDthe same would be lost or destroyed or rendered irretrievableby the time the results are declared and stage is set for invokingthe jurisdiction of the court.”

15. For the reasons aforestated, these applications are allowedin part and disposed of with the following directions:E

a. The Respondent-authorities shall hold elections to allPanchayats at village, intermediate and district levels,except those in the following nine reconstituted districts:

i. Kancheepuram

F

ii. Chengalpattu

iii. Vellore

iv. Thirupathur

v. Ranipet

G

vi. Villupuram

vii. Kallakurichi

viii. Tirunelveli

Hix. Tenkasi;

b. The Respondents (including the Delimitation Commission)are directed to delimit the nine newly-constituted districtsin accordance with law and thereafter hold elections fortheir panchayats at the village, intermediate and districtlevels within a period of four months; A

c. There shall be no legal impediment against holding electionsfor Panchayats at the village, intermediate and districtlevels for rest of the districts; B

d. State Election Commission shall notify elections for thepanchayats at village, intermediate and district levels inrespect of all districts except the nine re-constitutedCdistricts as per the details given in direction ‘a’ above.;

e. While conducting elections, the respondents shall provideproportionate reservation at all levels, in accordance withthe Rule 6 of Tamil Nadu Panchayats (Reservation of Seatsand Rotation of Reserved Seats) Rules, 1995.

D

16. In all fairness, we must note that the learned AdvocateGeneral of Tamil Nadu has also agreed to proceed with the electionprocess as directed above.

17. Since, the only grievance raised in the main appeals was thatthe local body elections ought be held on the basis of the 2011 Censusand not of 2001; and considering how the respondents have alreadyused the 2011 Census while conducting the latest delimitation exercise(except in the newly re-constituted nine districts), these appeals havebeen rendered infructuous and are disposed of accordingly.

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F

18. All pending I.As. also stand disposed of accordingly.

Divya Pandey

I.As. disposed of.

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H