Judgment
1. These interlocutory applications have been filed seeking directions for compliance with the constitutional mandate concerning elections to local bodies. The lead applicant, Dravida Munnetra Kazhagam (DMK), is the appellant in Civil Appeals Nos. 5467-5469 of 2017, wherein an order 2016 SCC OnLine Mad 9177, (2016) 4 LW 673 of the Madras High Court refusing to issue certain directions to the Tamil Nadu State Election Commission (the State Election Commission) is under challenge before us. It is also the principal Opposition party in the Legislative Assembly of the State of Tamil Nadu and is a recognised State party.
2. In the civil appeal DMK claimed that the party in power at the State level, Aiadmk, has deliberately been postponing elections; unconstitutionally been altering constituencies and refusing to effect rotation with the object of gaining undue political advantage. They have claimed that Articles 243-D and 243-T mandated that delimitation of constituencies be conducted after every decadal census and concomitant reservations be effected for Scheduled Castes and Scheduled Tribes on a “rotation” basis. Insofar as the Tamil Nadu Panchayats (Second Amendment) Act, 2016 allowed the next cycle of local elections in Tamil Nadu to be conducted as per the earlier 2001 Census, it contravened constitutional provisions and was, thus, liable to be struck down.
3. The aforestated issues have, however, been rendered academic by constitution of a Delimitation Commission under the newly enacted Tamil Nadu Delimitation Commission Act, 2017. This Commission initiated an elaborate exercise of delimitation on 25-7-2017 and eventually formulated a draft ward delimitation proposal on 20-9-2017. Thereafter, written objections were invited from the public, various political parties and organisations between 20-12-2017 and 18-1-2018. After considering such objections/suggestions and the revised proposals received from District Delimitation Authorities, the Delimitation Commission sent its final recommendation to the State Government on 31-8-2018. Thereafter, a Notification was issued by the State Government on 14-12-2018, whereby the wards newly delimited as per the 2011 Census figures were notified.
4. Thereafter, on 20-2-2019 the Delimitation Commission forwarded proposals for reservation, whereupon post consideration, the State Government vide Notifications dated 20-5-2019, 21-5-2019 and 24-5-2019 notified reserved seats for rural and urban local bodies in the State.
5. It is noteworthy that soon after on 12-11-2019 the State Government issued a notification dividing four existing districts of Tamil Nadu to create nine new districts. Vellore District was trifurcated into the districts of Vellore, Tirupathur and Ranipet; Kancheepuram was bifurcated into Kancheepuram and Chengalpet; Villupuram was bifurcated into Villupuram and Kallakurichi; and Tirunelveli was bifurcated into Tirunelveli and Tenkasi Districts. Resultantly, some talukas were also restructured with certain revenue villages either being added or removed. Para 7 of the aforestated notification then reads as follows:
“7. The delimitation of the territorial wards of Village Panchayats, Panchayat Union and District Panchayats have already been notified under the Tamil Nadu Panchayats Act, 1994 (Tamil Nadu Act 21 of 1994) and thereby the delimitation exercise for the ensuing local body elections has already been completed. Notwithstanding the notification to bifurcate the districts, the process started already to conduct the ensuing local body elections will be continued as per the order of the Hon'ble Supreme Court dated 17-7-2019 in C.R. Jayasukin v. T.N. State Election Commission 2019 SCC OnLine SC 1660. After the ensuing local body elections, the process of modification, if any, with regard to local bodies will be taken up by the Government.”
6. As is apparent from the above extract, there is a pointed reference to this Court's order dated 17-7-2019 in C.R. Jayasukin v. T.N. State Election Commission 2019 SCC OnLine SC 1660. This order was delivered in MA No. 2328 of 2019 which was filed by the State Election Commission and reads as under : (SCC OnLine SC paras 1-4)
“1. On 2-7-2019 2019 SCC OnLine SC 1659, this Court had passed the following order : (C.R. Jayasukin case 2019 SCC OnLine SC 1659, SCC OnLine SC paras 1-2)
‘1. Respondent 1, the Tamil Nadu State Election Commission, shall file an affidavit within two weeks hence, indicating the time within which the delimitation exercise that is stated to be at an advance stage, will be completed and when elections to the local bodies can be held.
2. List the matter on 17-7-2019.’
2. Pursuant thereto, an affidavit dated 15-7-2019, has been filed by the Secretary, Tamil Nadu State Election Commission.
3. We have perused the said affidavit and we are satisfied with the grounds mentioned therein, which explain the delay in completion of the delimitation exercise and in issuing the notification in respect of local bodies elections. We have also taken note of the fact that in Para 28, the Secretary of the State Election Commission has stated that the notification announcing the schedule of the election will be published in the last week of October 2019.
4. In view of the aforesaid statement made before the Court in the affidavit filed by the Secretary of the State Election Commission, we permit the State authority to act in the manner as undertaken before the Court i.e. publish the election notification in the last week of October 2019.”
7. Thereafter, this Court passed the following order on 18-11-2019 2019 SCC OnLine SC 1664 : (C.R. Jayasukin case 2019 SCC OnLine SC 1664, SCC OnLine SC paras 1-3)
“1. List on 13-12-2019, by which time we hope and expect that notification will be issued after completing all legal formalities.
2. Dr Abhishek Manu Singhvi, learned Senior Counsel states that there are some connected matters i.e. SLPs (C) Nos. 28881-28883 of 2016 and batch.
3. List all the connected matters together before the appropriate Bench, after obtaining orders from the Hon'ble the Chief Justice of India.”
(emphasis supplied)
8. In purported deference to the above reproduced orders, the State Election Commission on 2-12-2019 announced the Programme of Elections for all Panchayats at the village, intermediate and district levels, which is as follows:
Programme of Election
1.
Publication of public notice of election and commencement of receipt of nominations
6-12-2019
2.
Last date of making nominations
13-12-2019
3.
Scrutiny of nominations
16-12-2019
4.
Withdrawal of candidates
18-12-2019
5.
Dates of Poll
Phase I Phase II
27-12-2019 30-12-2019
6.
Date of commencement of counting of votes
2-1-2020
7.
Date before which the election shall be completed
4-1-2020
8.
Date on which the first meeting of the newly elected ward members shall be held for assumption of office by taking oath or affirmation
6-1-2020
9.
Date on which the meeting of the ward members shall be held for the election of Vice-Presidents or Chairman and Vice-Chairman, as the case may be.
11-1-2020
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 posts in rural local bodies, out of which:
(i) 655 posts of Village Panchayat Ward Members within 31 district panchayats;
(ii) 6471 posts of Panchayat Union Ward Members within 388 panchayat unions;
(iii) 12,524 posts of Village Panchayat Presidents and 99,324 posts of Village Panchayat Ward Members are included.
Political party based elections and non-political party based elections
The election to the posts of Village Panchayat Presidents and Village Panchayat Ward Members will be as non-political party based elections; the election to the posts of District Panchayat Ward Members and Panchayat Union Ward Members will be as political party based election.
Indirect elections
Indirect elections to the following posts will be held on 11-1-2020 through the elected representatives of the local bodies.
Posts of Chairman of District Panchayat Council
31
Posts of Vice-Chairman of District Panchayat Council
31
Posts of Chairman of Panchayat Union Council
388
Posts of Vice-Chairman of Panchayat Union Council
388
Posts of Vice-President of Village Panchayat President
12,524
Total
13,362
10. It, thus, emerges that before the election process could begin as per the State Election Commission's Press Release dated 2-12-2019, the State of Tamil Nadu increased the number of districts from 31 to 39 and also restructured various talukas. However, with regard to posts of Chairman and Vice-Chairman of District Panchayat Councils, elections are still sought to be held only for 31 posts. This resultant incongruity has prompted the appellants to file these applications with prayers to strike down the Notification dated 2-12-2019; hold elections for the entire State comprising all 39 revenue districts; and conduct such local body elections only after completion of all legal formalities i.e. after delimitation of the newly carved districts. A specific direction has also been prayed for, to compel the respondents to first carry out delimitation, reservation, rotation processes and fulfil all other legal requirements before notifying or conducting elections of any panchayat at the village, intermediate or district level.
11. Having heard the learned counsel for the parties at a considerable length and after an in-depth analysis of various statutory provisions as well as the constitutional scheme under Part IX which envisages democratisation of grass-root level administration, we are of the view that, as per Article 243-B, panchayats have to 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 the population residing within the territory of a particular panchayat and the number of seats allocated to it, across all panchayats in the State. Further, each panchayat must be divided into territorial constituencies and per Article 243-D, seats in proportion to their population must be reserved for Scheduled Castes and Scheduled Tribes in each panchayat.
12. It is, thus, clear that the constitutional object of Part IX cannot be effectively achieved unless the delimitation exercise for constitution of local bodies at all levels is properly undertaken. Such exercise in the State of Tamil Nadu must keep in view the criteria for delimitation of wards prescribed under the 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.
13. Noticing how at the completion of the delimitation process there were only 31 revenue districts, but despite a subsequent increase in number of districts to 39, no fresh delimitation exercise has been undertaken, it is clear that the State Government cannot fulfil the aforestated constitutional mandate. There is no identified data elucidating population proportions and, hence, requisite reservation for Scheduled Castes and Scheduled Tribes cannot be provided for, both in re village panchayat wards or Chairman/Vice-Chairman of District bodies. We, hence, have no doubt that the election process as notified by the State Election Commission on 2-12-2019, in respect of the newly constituted nine districts cannot be held unless fresh delimitation exercise in respect thereto is first completed. The State Government cannot justify holding local body elections of these nine districts by relying upon this Court's order dated 18-11-2019 2019 SCC OnLine SC 1664 as the said order itself mandates notification of elections only after completing “all legal formalities”.
14. The contention of the respondents that the present proceedings amount to “calling in question an election” and hence not being maintainable in view of the express constitutional embargos of Articles 243-O and 243-ZG does not impress us for the present proceedings are only to further the expeditious completion of prerequisites of a fair election. Hence, the following ratio of a coordinate Bench in Election Commission of India v. Ashok Kumar (2000) 8 SCC 216 squarely applies to the present case :
“32. … (2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body been shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.”
15. For the reasons aforestated, these applications are allowed in part and disposed of with the following directions:
15.1. The respondent authorities shall hold elections to all panchayats at village, intermediate and district levels, except those in the following nine reconstituted districts:
(i) Kancheepuram
(ii) Chengalpattu
(iii) Vellore
(iv) Thirupathur
(v) Ranipet
(vi) Villupuram
(vii) Kallakurichi
(viii) Tirunelveli
(ix) Tenkasi
15.2. The respondents (including the Delimitation Commission) are directed to delimit the nine newly constituted districts in accordance with law and, thereafter, hold elections for their panchayats at the village, intermediate and district levels within a period of four months
15.3. There shall be no legal impediment against holding elections for panchayats at the village, intermediate and district levels for rest of the districts;
15.4. The State Election Commission shall notify elections for the panchayats at village, intermediate and district levels in respect of all districts except the nine reconstituted districts as per the details given in direction 15.1 above
15.5. While conducting elections, the respondents shall provide proportionate reservation at all levels, in accordance with Rule 6 of the Tamil Nadu Panchayats (Reservation of Seats and Rotation of Reserved Seats) Rules, 1995.
16. In all fairness, we must note that the learned Advocate General of Tamil Nadu has also agreed to proceed with the election process as directed above.
17. Since, the only grievance raised in the main appeals was that the local body elections ought be held on the basis of the 2011 Census and not of 2001; and considering how the respondents have already used the 2011 Census while conducting the latest delimitation exercise (except in the newly reconstituted nine districts), these appeals have been rendered infructuous and are disposed of accordingly.
18. All pending IAs also stand disposed of accordingly.