K.S. Radhakrishnan, J.
1. Whether an order issued by Delimitation Commissioner under Sub-section (l) of Section 10 of the Delimitation Act and published in the Gazette under Sub-section(2) is susceptible to challenge under Article 226 in view of the specific bar contained in Article 329(a) of the Constitution of India, is the question that has come up for consideration in this case.
2. Petitioner, President of the District Congress Committee, Kannur, has moved this Court under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P8 notification dated 31.05.2005 issued by the Delimitation Commission of India under the Delimitation Act and also for a declaration that the delimitation of constituencies in the State of Kerala in particular in the Kannur district is violative of Articles 14, 19 and 21 of the Constitution of India. Writ of mandamus was also sought for seeking a direction to the Delimitation Commission to consider the various objections raised by the petitioner and other people's representative including its associate members and to delimit the constituencies accordingly.
3. The fourth respondent in the Writ Petition raised a preliminary objection regarding the maintainability of the Writ Petition. Learned single Judge felt that the preliminary objection as well as the merits of the case could be dealt with simultaneously and directed the Election Commission and others to file their statement or counter affidavit in the Writ Petition. Election Commission is aggrieved by non consideration of the preliminary objection at the threshhold and has filed W.A.No 1495 of 2005. When the writ appeal came up for hearing we have called for the Writ Petition also for final hearing to consider the question of maintainability of the petition.
4. Petitioner is stated to be the President of the District Congress Committee, Kannur and he is also a voter in Kannur Constituency, Kannur district. Petitioner submits even though various objections were raised before the Delimitation Commission in respect of the delimitation of the Kannur Assembly Constituency, Commission has rejected those suggestions and objections and published the notification dated 31.5.2005 in a most unscientific manner without any application of mind to the issues involved. Power of the delimitation, it is alleged, has been abused to achieve an oblique and ulterior motive. Respondents refuted the various allegation raised against the Delimitation Commission and submitted that all the procedural formalities were complied with by the Commission and it took a conscious decision while delimiting the constituencies. Further it was pointed out that the Delimitation Commission was constituted in terms of the provisions of the Delimitation Act, 33 of 2002, consisting of former Judge of the Supreme Court as its Chairperson and the allegation raised against the Commission is totally baseless. Fourth respondent, Chief Electoral Officer and Secretary to Government therefore filed LA. No 10110 of 2005 to recall the order dated 5.7.2005 passed by the learned single Judge to the extent of directing him to file statement on merits and to hear the maintainability of the Writ Petition.
5. Sri Murali Purushothaman, counsel appearing for the Chief Electoral Officer submitted that the Delimitation Commission of India has already issued the notification dated 31.05.2005 under Section 10(l) of the Delimitation Act, 2002 delimiting the assembly constituencies in the State of Kerala. Section 10(2) of the Delimitation Act, 2002 provides that upon publication in the Gazette of India, every order of the Delimitation Commission delimiting constituencies shall have the force of law and that order cannot be called in question in any court in view of the express bar of judicial review under Article 329(a) of the Constitution of India. Counsel placed considerable reliance on the decision of the Constitution Bench of the apex court in Meghraj Kothari v. Delimitation Commission and Ors., : [1967]1SCR400 in order to substantiate his contention. Reference was also made to the decision of the apex court in N.P. Ponnuswami v. Returning Officer, Namakhal Constituency , : [1952]1SCR218 . Counsel also referred to the Constitution Bench decision of the apex court in Indira Nehru Gandhi v. Shri Raj Narain, : [1976]2SCR347 . Reference was also made to the decisions of the Apex Court in Boddula Krishnaiah and Anr. v. State Election Commissioner, A.P. and Ors. , : [1996]3SCR687 , State of U.P. v. Pradhan Sangh Kshetra Samiti, : AIR1995SC1512 , Anugrah Narain Singh v. State of U.P., : (1996)6SCC303 and L. Chandrakumar v. Union of India, : [1997]228ITR725(SC) .
6. Counsel appearing for the writ petitioner Sri K. Ramakumar submitted that judicial review is the basic feature of the Constitution and the same cannot be excluded. Counsel made reference to the decision of a Division Bench of this Court in Kunhabdulla v. State of Kerala, 2000 (3) KLT 45. Counsel also made reference to the decision of the Supreme Court in State of Rajasthan v. Union of India, : [1978]1SCR1 , S.R. Bommai v. Union of India, : [1994]2SCR644 and Kartar Singh v. State of Punjab, 1995 (2) KLT (SC) (SN) 59 P.44 : JT 1994 (2) SCC 423 and the decision of a Full Bench of this Court in Amaravila Krishnan Nair v. Election Commissioner of India, 1970 KLT 787. Counsel submitted that even in respect of Articles 323A and 368, exclusion of jurisdiction of the court was declared illegal by the Supreme Court. Counsel placed reliance on the decision of the apex court in L. Chandrakumar v. Union of India, : [1997]228ITR725(SC) . Counsel submitted that exclusion of jurisdiction under 10th Schedule was held to be not binding on courts. Reference was made to the decision of the Apex Court in Kihota Hollohon v. Zachillu, : [1992]1SCR686 and Ravi Naik v. Union of India, : [1994]1SCR754 . Counsel submitted that without providing for any adjudicative machinery there cannot be any exclusion of jurisdiction of the court. Counsel also submitted that law can be attacked as void under Part III of the Constitution of India. Reliance was placed on the decisions of the apex court in In re under Article 143 of the Constitution of India, : AIR1965SC745 and Union of India v. S.R. Vohra and Ors., : AIR2004SC1402 . Counsel submitted that administrative action vitiated by mala fides can be subjected to judicial scrutiny. Counsel placed reliance on the decision of the Apex Court in Election Commission of India v. Ashok Kumar, : AIR2000SC2979 , Delhi Development Authority and Anr. v. UEE Electrical Engineering (P) Ltd., : AIR2004SC2100 , Chandran v. Union of India, : 2003(2)KLT567 and State of A.P. v. Govardhanlal Pitti, : [2003]2SCR908 . Counsel therefore submitted that the notification issued by the Delimitation Commission can be questioned before this Court.
7. Parliament in the 53rd year of the Republic of India has enacted the Delimitation Act 2002 to provide for the readjustment of the allocation of seats in the House of the People to the States, the total number of seats in the Legislative Assembly into territorial constituencies for elections to the House of the People and Legislative Assemblies of the States and Union Territories and for matters connected therewith. Section 3 of the Act deals with constitution of Delimitation Commission, which states that as soon as may be after the commencement of the Act, the Central Government shall constitute a Commission to be called the Delimitation Commission. The Commission shall consist of three members of which one shall be a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government who shall be the Chairperson of the Commission and another member shall be the Chief Election Commissioner or an Election Commissioner nominated by the Chief Election Commissioner, ex officio and the third member shall be the State Election Commissioner of concerned State, ex ojficio. Section 4 deals with duties of the Commission. Section 9 of the Act deals with delimitation of constituencies and Section 10 deals with publication of orders and their date of operation. Sub-section (2) of Section 10 states that upon publication in the Gazette of India, every such order shall have the force of law and shall not be called in question in any court. After publication of the notification, every such order shall be laid before the House of the People and the Legislative Assemblies of the States concerned. For easy reference we may quote the relevant provisions of the Delimitation Act.
10. Publication of orders and their date of operation.--
(1) The Commission shall cause each of its orders made under Section 8 or Section 9 to be published in the Gazette of India and in the Official Gazettes of the States concerned and simultaneously cause such orders to be published at least in two vernacular newspapers and publicize on radio, television and other possible media available to the public and after such publication in the official gazettes of the States concerned, every District Election Officer shall cause to be affixed, the Gazette version of such orders relating to the area under his jurisdiction, on a conspicuous part of his office for public notice.
(2)Upon publication in the Gazette of India, every such order shall have the force of law and shall not be called in question in any court.
(3) As soon as may be after such publication, every such order shall be laid before the House of the People and the Legislative Assemblies of the States concerned.
(emphasis supplied)
Contention was raised that apart from the specific bar under Sub-section (2) of Section 10 of the Delimitation Act, upon publication in the Gazette of India, orders passed by the Commission under Sections 8 and 9 shall have the force of law and shall not be called in question in any court. Article 329 (a) also stipulates that the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court. For easy reference we may refer to Article 329 of the Constitution as well.
329. Bar to interference by courts in electoral matters.-- Notwithstanding anything in this Constitution--
(a)the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made, under Article 327 or Article 328. shall not be called in question in any court:
(b) no election to either House of Parliament or to the House Or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and to such manner as may be provided for by or under any law made by the appropriate Legislature.
(emphasis supplied)
Several decisions were cited at the bar, but the Constitution Bench of the Apex Court in Meghraj Kothari v. Delimitation Commission and Ors., : [1967]1SCR400 would answer most of the issues raised for our consideration. That was a case where a resident voter of Ujjain challenged the notification published in the Gazette of India dated 24.7.1964 which showed Ujjain as a constituency reserved for the scheduled castes. Notification was issued under Sub-section (1) to Section 10 of the Delimitation Commission Act 1962 and the same was published after considering all the objections and suggestions. Contention was raised that Ujjain City was there from the very inception of the Constitution of India, which was a general constituency and by virtue of the fact that the City was converted into reserved constituency petitioner's right to be a candidate for Parliament election was taken away. High Court of Madhya Pradesh summarily rejected the petition under Article 226 of the Constitution on the ground that under Article 329(a) of the Constitution the notification could not be questioned in any court which was upheld by the apex court. The apex court held as follows:
'In our view, therefore, the objection to the delimitation of constituencies could only be entertained by the Commission before the date specified. Once the orders made by the Commission under Sections 8 and 9 were published in the Gazette of India and in the official gazettes of the States concerned, these matters could no longer be reagitated in a court of law. There seems to be very good reason behind such a provision, If the orders made under Sections 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. Section 10 (2) of the Act clearly demonstrates the intention of the Legislature that the orders under Sections 8 and 9 published under Section 10(1) were to be treated as law which was not to be questioned in any court.
It is true that an order under Section 8 or 9 published under Section 10(1) is not part of an Act of Parliament, but its effect is to be the same. '
In paragraph 11 of the judgment the apex court held as follows:
'It will be noted from the above that it was the intention of the legislature that every order under Sections 8 and 9 after publication is to have the force of law and not to be made the subject matter of controversy in any court. In other words, Parliament by enacting Section 10(2) wanted to make it clear that orders passed under Sections 8 and 9 were to be treated as having the binding force of law and not mere administrative directions. This is further reinforced by Sub-section (4) of Section 10 according to which the readjustment of representation of the several territorial constituencies in the House of the People and the delimitation of those constituencies provided for in any such order (i.e. under Sections 8 or Section 9) was to apply in relation to every election to the House held after the publication of the order in the Gazette of India and these provisions contained in the order were to be supersede all provisions relating to such representation and delimitation contained in the Representation of People Act, 1950 and the Delimitation of Parliamentary and Assembly Constituencies Order, 1961. In effect, this means the complete effacement of all provisions of this nature which were in force before the passing of the orders under Sections 8 and 9 and only such orders were to hold the field. Therefore although the impugned notification was not a statute passed by Parliament, it was a law relating to the delimitation of constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution.'
Constitution Bench while deciding Meghraj Kothari's case : [1967]1SCR400 made reference to another decision in N.P. Ponnuswamy v. Returning Officer, : [1952]1SCR218 . That was a case where the appellant was a person who had filed a nomination paper for election to the Madras Legislative Assembly from the Namakkal constituency which was rejected. Consequently he had moved the High Court under Article 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to direct him to include his name in the list of valid nominations to be published. The application was dismissed by the High Court on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of Article 329(b) of the Constitution. The Apex Court examined the notable difference in the language used in Article 327 and 328 on the one hand and Article 329 on the other and held as follows:
While the first two articles begin with the words 'subject to the provisions of this Constitution', the last article begins with the words 'notwithstanding anything in this Constitution'. It was conceded at the Bar that the effect of this difference in language is that whereas any law made by Parliament under Article 327, or by the State Legislatures under Article 328, cannot exclude the jurisdiction of the High Court under Article 226 of the Constitution, that jurisdiction is excluded in regard to matters provided for in Article 329.'
Considerable reliance was placed by Sri K. Ramakumar, counsel appearing for the writ petitioner, on the decision of a Full Bench of this Court in Amaravila Krishnan Nair v. Election Commissioner of India, 1970 KLT 787 and contended that the Draconian words that the order shall not be called in question in any court which find place in Sub-section (2) of Section 10 of the Delimitation Act 2002 and Article 329(a) of the Constitution may not be a bar in invoking the jurisdiction of this Court under Article 226 of the Constitution of India, which according to the counsel, cannot be taken away by any legislature. In Amaravila Krishnan Nair's case, supra 1970 KLT 787 the court after referring to Ponnuswamy's case : [1952]1SCR218 held that if a person cannot question a material irregularity in the preparation of the electoral rolls in a proceeding under Article 226 for failure to comply with the provisions of the Representation of the People Act 1950 or the Rules, the position would be that it cannot be questioned either before or during the progress of or after the election. The court felt it was difficult to uphold such a position, unless compelled by some clear provision of the law, as that would be sanctioning the vesting of a uncontrolled power in any agency bound to act in accordance with the provisions of the Representation of People Act 1950 in the matter of preparation of electoral rolls. Full Bench in the above case was dealing with the irregularity in the preparation of electoral roll and whether that irregularity could be questioned in a petition under Article 226 of the Constitution of India. Preliminary objection of maintainability of the Writ Petition was raised on the basis of Article 329(b) of the Constitution and not under Article 329(a). So also the situation in Ponnuswamy 's case. It was in that context the Full Bench opined that non-compliance with the mandatory provision of the Representation of People Act 1950 may make the proceeding for preparation of electoral rolls null and void and that Section 30 of the Representation of People Act may not bar a suit for declaration that the proceedings are a nullity.
8. We may in this connection refer to some of the parallel provisions contained in Panchayat Raj Act and Municipalities Act. After the introduction of Part IX in the Constitution of India by the 73rd Amendment Act 1992 and Part IXA by the Seventy Fourth Amendment Act 1992, the apex court had occasion to consider the jurisdiction of High Courts with regard to matters referred to allotment of seats and preparation of electoral rolls. The apex court in State of U.P. v. Pradhan Sangh Kshetra Samiti and Ors. (1995 Supp. (2) SCC 305) examined the scope of Sections 2(t), 2(g), 2(kk) and 2(11) of the U.P. Panchayat Raj Act 1947 in the context of Article 243-O, 243-C, 243-K and 226 of the Constitution of India and held that it is for the Government to decide in what manner the panchayat areas and the constituencies in each panchayat area would be delimited and not for the court to dictate the manner in which the same would be done. So long as the panchayat areas and the constituencies are delimited in conformity with the constitutional provisions or without committing a breach thereof, the courts cannot interfere with the same. The court held that neither the delimitation of the panchayat area nor of the constituencies could have been challenged nor the court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The court held that the High Court erred in not only entertaining the challenge but also in going into the merits of the alleged grievances although the challenge was made after the notification for election was issued. The court referred to the decision of the apex court in Meghraj Kothari's case and held that Section 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any court of law. The court held that there was a very good reason for such a provision because if the orders made under Sections 3 and 9 were not to be treated as final, the result 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. The court further held that although an order under Section 8 or Section 9 of the Delimitation Commission Act and published under Section 10(l) of that Act is not part of an Act of Parliament, its effect is the same. The court concluded that Section 10(4) of that Act puts such an order in the same position as a law made by Parliament itself which could only be made by it under Article 327. Reading Article 243-C, 243-K and 243-O in place of Article 327 and Section 2(kk), 11-F and 12-BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, the apex court pointed out that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of the seats to the constituencies could have been challenged nor the court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given.
9. The Apex Court in Anugrah Narain Singh v. State of U.P. : (1996)6SCC303 examined the scope of Article 243-ZG in the light of Article 226 of the Constitution of India. There is clear and absolute bar in considering any matter on any ground after the publication of the notification preceding the election. The court held that the validity of the notification made under Article 243ZG cannot be questioned in any court and no election to a Municipality can be questioned except by election petition. Decisions referred to herein before would positively show that once orders issued under Sections 8 and 9 were published in the Gazette of India and official gazette of the State concerned, those matters could no longer be agitated in a court of law under Article 226 of the Constitution of India.
10. Counsel appearing for the petitioner placed considerable reliance on the decisions in Kesavananda Bharathi's case, : AIR1973SC1461 , State of Rajasthan v. Union of India, : [1978]1SCR1 and S.R. Bommai v. Union of India, : [1994]2SCR644 and other decisions and contended that since Article 226 of the Constitution being basic structure of the Constitution judicial review of orders passed under Sections 8 and 9 of the Delimitation Act 2002 cannot be excluded from the purview of judicial review. Counsel submitted even in spite of Article 323-A and 365 exclusion of jurisdiction of court was declared illegal. Relying on the decision of the apex court in L Chandrakumar's case AIR 1997 SC 125 counsel also submitted that exclusion of jurisdiction under 10th Schedule was held to be not binding on courts. In any view counsel submitted that any law as understood under Article 329(a) of the Constitution can be challenged under Article 226 of the Constitution of India.
11. We find it unable to agree with the proposition urged by counsel for the petitioner. Basic structure theory enunciated in Kesavananda Bharathi's case : AIR1973SC1461 , came up for consideration before the apex court in Smt. Indira Nehru Gandhi v. Raj Narain : [1976]2SCR347 and in paragraph 667 of the judgment, Justice Shri Y.V. Chandrachud dealing with the argument of the counsel that judicial review is part of the basic structure of the Constitution noticed that when the Constitution was originally enacted it expressly excluded judicial review in a large variety of important matters. Reference was made to Articles. 31(4), 31(6), 136(2), 227(4), 262(2) and 329(a) of the Constitution of India. The court noticed that each of the provisions has a purpose behind it but those provisions would show that the Constitution did not regard judicial review as an indispensable measure of the legality or propriety of every determination. Article 136(2) expressly took away the power of the Supreme Court to grant special leave to appeal from the decisions of any court or Tribunal constituted by a law relating to the Armed Forces. Article 262 (2) authorised the Parliament to make a law providing that the Supreme Court or any other court shall have no jurisdiction over certain river disputes. Reference was also made to Articles 103(1) and 329(b). Article 102 prescribes disqualifications for membership of the Parliament. It was noticed that by Articles 103(l) any question arising under Articles 102 as to whether a member of the Parliament has become subject to any disqualification has to be referred to the President whose decision is final. Further .President is required by Article 103(2) to obtain the opinion of the Election Commission and to act according to its opinion. The court noticed that in a vital matter pertaining to the election for membership of the Parliament the framers of the Constitution had left the decision to the judgment of the executive. Further Articles 327 and 328 give power to the Parliament and the State Legislatures to provide by law for all matters relating to elections to the respective legislatures including the preparation of electoral rolls and the delimitation of constituencies. It also noticed that by Article 329(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies cannot be called in question in any court. Referring to Article 329 (b) the court pointed out that the Article provides that no election to the Parliament or the State Legislature shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. Judicial review there can be excluded in certain limited areas, though it is considered to be the basic structure of the Constitution.
12. The Constitution Bench of the apex court later in L. Chandrakumar v. Union of India and Ors., : [1997]228ITR725(SC) after referring to the decisions of the Apex Court in Kesavananda Bharati's case, Minerva Mills Ltd. v. Union of India, : [1981]1SCR206 and Indira Nehru Gandhi's case. noticed that Article 329(a) as an example and pointed out that judicial review cannot be considered to be a part of the basic structure so far as election to the legislature is concerned. In the above decision, apex court held that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Articles 32 of the Constitution, constituting part of its basic structure and therefore ordinarily the power of the High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. Constitutional Bench therefore noticed that in extra ordinary circumstances, for example, for purity of election and other related matters judicial review cannot be considered to be part of basic structure and same can be ousted by law.
13. The Apex Court in State of Karnataka v. State of A.P. and Ors. , : AIR2001SC1560 examined the scope of Articles 131 and 262 in the light of Section 11 of the Inter-State Water Disputes Act, 1956. It is in exercise of the constitutional power under Articles 261(l) Parliament has enacted law viz, Inter-State Water Disputes Act, 1956. Section 11 of the said Act provides that neither the Supreme Court nor any other court shall have jurisdiction in respect of any water dispute which could be referred to a tribunal under the Act. Though the Court held on facts that the question involved is with regard to water the Writ Petition was not with regard to water dispute. The court noticed that Parliament has got power notwithstanding anything contained in the Constitution to pass a law ousting the jurisdiction of the Supreme Court or any other court in respect of inter-state water disputes. Recently the Supreme Court had occasion to consider the scope of Articles 363 in the light of Article 226 of the Constitution of India in Dr. Karan Singh v. State of J.&K.; and Anr., : (2004)5SCC698 . After referring to the decision in Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 35 the court held that any right arising out of or relating to a treaty, covenant, agreement etc, as mentioned in Articles 363 is barred to be determined by any court.
14. The above mentioned decisions would show even though judicial review is part of the basic structure of the Constitution, but Constitution could exclude judicial review in certain situations. Articles. 31(4), 31(6), 136(2), 227(4), 262(2), 243 Order, 243 ZG, 329(a) etc. have excluded the scope of judicial review with a laudable objective pointing 'that the judicial review in certain situations may not be regarded as an indispensable measure to determine the legality or propriety of actions. The difference in the phraseology used in Article 329 (a) and (b) may give some room for challenging the orders passed under Article 329(b) under Article 226 of the Constitution of India on certain limited grounds but not the orders relating to delimitation of constituencies which fall under Article 329(a). The words 'shall not be called in question' are absent in Article 329(b) but very much present in Article 329(a). Article 329(b) enables aggrieved person to question the election by an election petition as provided for under any law. The decision in Meghraj Kothari's case, in our view, is an authority for the proposition that orders passed under Sections 8, 9 and 10(2) of the Delimitation Act and have to be treated as law under Article 329(a) of the Constitution and therefore cannot be called in question in any court. We therefore decline jurisdiction of this Court holding that the petition under Article 226 of the Constitution of India is not maintainable in view of the specific bar contained under Article 329(a) of the Constitution. Preliminary objection is therefore upheld and W.P.C. No 19772 of 2005 would stand dismissed and allow Writ Appeal 1495 of 2005.