# CASE DETAILS PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC AREAS AND ANR v. UNION OF INDIA & ORS

- **Citation:** 2023 INSC 1086
- **Court:** Supreme Court of India
- **Decided:** 2023-11-23
- **Bench:** Dr Dhananjaya Y Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-public-interest-committee-for-scheduling-specific-areas-and-anr-v-37126
- **Pages:** 44

## Headnote

Issue for consideration: Matter pertains to the scope of the Court's
power to issue directions for the grant of proportional representation for the
Limboo-Tamang Scheduled Tribes in the House of the People and in the
Legislative Assemblies of West Bengal and Sikkim in terms of the mandate
of Articles 330 and 332 of the Constitution; and directions to the Delimitation
Commission as well as the Election Commission to eff ectuate the mandate
of Art. 332 of the Constitution, in respect of Limboo Tamang Scheduled
Tribe, by undertaking necessary changes to the Delimitation Notifi cation
of 2006 and the Delimitation Order of 2008.
Delimitation Act, 2002 - Delimitation Notification of 2006
under - Petitioners case that 2006 Delimitation Notifi cation did not
accommodate the newly inducted Limboo Tamang Scheduled Tribes
designated as such under the Amending Act of 2002 - Delimitation
Commission if can amend the Delimitation Notifi cation of 2006:
Held: In view of Art. 329 of the Constitution, the Delimitation
Notifi cation of 2006 cannot be called into question - Any changes to the 2006
Notifi cation, could only have been made in accordance with the Delimitation
Act - Act envisages changes/suggestions only until the publication of the
fi nal notifi cation, consequent to which, the notifi cation assumes the force of
law in supersession of any other law for the time being in force - Delimitation
Act only provides for changes prior to the fi nal notifi cation - Once published,
the Notifi cation cannot be amended even by the Delimitation Commission
1075
under the 2002 Act - Thus, the Delimitation Commission cannot amend the
Delimitation Notifi cation of 2006. [Paras 56, 57]
Constitution of India - Art. 324 - Powers of the Election
Commission under - Scope of:
Held: Article 324 vests wide-ranging powers in the Election
Commission - Power u/Art. 324, though plenary, is not untrammeled, but is
conditioned by the provisions of the statutes governing the fi eld - Power of
the Election Commission u/Art. 324 is meant to supplement and not supplant
the law made by the Parliament and must be read in harmony with the
provisions of the statutes governing the fi eld-which include the Delimitation
Act, 2002 and the Representation of People's Act, 1950. [Paras 58, 60]
Representation of People's Act, 1950 - ss. 8, 10 and 10-A - Election
Commission, if can amend the 2008 Order to the extent that they do not
provide for reservations for members of the Limboo-Tamang Scheduled
Tribe, to incorporate those changes:
Held: U/s. 8, the Election Commission is to consolidate Orders made
by the Delimitation Commission u/s. 10, 10-A and 10-B of the Delimitation
Act - Consolidation has been carried out by the Election Commission and
the 2008 Delimitation of Parliamentary and Assembly Constituencies Order
is an outcome of this consolidation - Once consolidated in this manner,
s. 9 comes into operation which implies that if the Election Commission
considers it necessary and expedient, it may consolidate with the 2008 Order
"any notifi cation or order relating to delimitation" of constituencies issued
u/s. 8A or under any other Central Act, and not all orders and notifi cations
whatsoever - Amending Act of 2002 which designates Limboo-Tamang
Scheduled Tribes is enacted u/Arts.341(2) and 342(2) of the Constitution
- It does not relate to delimitation, but to designation of certain Castes and
Tribes as Scheduled Castes and Tribes for the purpose of Art. 366 - For the
Election Commission to act, there must be an order that relates to delimitation
issued u/s. 8-A or under a Central Act - Neither of these conditions present
as far as the Amending Act of 2002 is concerned, to warrant the exercise
of power u/s. 9(1)(aa) - Thus, the RP Act does not envisage a duty vested
in the Election Commission to amend the 2008 Order to include the 2002
Amending Act. [Paras 61, 63, 67-70]
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC
AREAS v. UOI]
1076
SUPREME COURT REPORTS
[2023] 16 S.

## Text

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[2023] 16 S.C.R. 1074 : 2023 INSC 1086
1074
CASE DETAILS
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC
AREAS AND ANR.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No 443 of 2017)
NOVEMBER 23, 2023
[DR DHANANJAYA Y CHANDRACHUD, CJI,
J B PARDIWALA AND MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: Matter pertains to the scope of the Court's
power to issue directions for the grant of proportional representation for the
Limboo-Tamang Scheduled Tribes in the House of the People and in the
Legislative Assemblies of West Bengal and Sikkim in terms of the mandate
of Articles 330 and 332 of the Constitution; and directions to the Delimitation
Commission as well as the Election Commission to eff ectuate the mandate
of Art. 332 of the Constitution, in respect of Limboo Tamang Scheduled
Tribe, by undertaking necessary changes to the Delimitation Notifi cation
of 2006 and the Delimitation Order of 2008.
Delimitation Act, 2002 - Delimitation Notification of 2006
under - Petitioners case that 2006 Delimitation Notifi cation did not
accommodate the newly inducted Limboo Tamang Scheduled Tribes
designated as such under the Amending Act of 2002 - Delimitation
Commission if can amend the Delimitation Notifi cation of 2006:
Held: In view of Art. 329 of the Constitution, the Delimitation
Notifi cation of 2006 cannot be called into question - Any changes to the 2006
Notifi cation, could only have been made in accordance with the Delimitation
Act - Act envisages changes/suggestions only until the publication of the
fi nal notifi cation, consequent to which, the notifi cation assumes the force of
law in supersession of any other law for the time being in force - Delimitation
Act only provides for changes prior to the fi nal notifi cation - Once published,
the Notifi cation cannot be amended even by the Delimitation Commission
1075
under the 2002 Act - Thus, the Delimitation Commission cannot amend the
Delimitation Notifi cation of 2006. [Paras 56, 57]
Constitution of India - Art. 324 - Powers of the Election
Commission under - Scope of:
Held: Article 324 vests wide-ranging powers in the Election
Commission - Power u/Art. 324, though plenary, is not untrammeled, but is
conditioned by the provisions of the statutes governing the fi eld - Power of
the Election Commission u/Art. 324 is meant to supplement and not supplant
the law made by the Parliament and must be read in harmony with the
provisions of the statutes governing the fi eld-which include the Delimitation
Act, 2002 and the Representation of People's Act, 1950. [Paras 58, 60]
Representation of People's Act, 1950 - ss. 8, 10 and 10-A - Election
Commission, if can amend the 2008 Order to the extent that they do not
provide for reservations for members of the Limboo-Tamang Scheduled
Tribe, to incorporate those changes:
Held: U/s. 8, the Election Commission is to consolidate Orders made
by the Delimitation Commission u/s. 10, 10-A and 10-B of the Delimitation
Act - Consolidation has been carried out by the Election Commission and
the 2008 Delimitation of Parliamentary and Assembly Constituencies Order
is an outcome of this consolidation - Once consolidated in this manner,
s. 9 comes into operation which implies that if the Election Commission
considers it necessary and expedient, it may consolidate with the 2008 Order
"any notifi cation or order relating to delimitation" of constituencies issued
u/s. 8A or under any other Central Act, and not all orders and notifi cations
whatsoever - Amending Act of 2002 which designates Limboo-Tamang
Scheduled Tribes is enacted u/Arts.341(2) and 342(2) of the Constitution
- It does not relate to delimitation, but to designation of certain Castes and
Tribes as Scheduled Castes and Tribes for the purpose of Art. 366 - For the
Election Commission to act, there must be an order that relates to delimitation
issued u/s. 8-A or under a Central Act - Neither of these conditions present
as far as the Amending Act of 2002 is concerned, to warrant the exercise
of power u/s. 9(1)(aa) - Thus, the RP Act does not envisage a duty vested
in the Election Commission to amend the 2008 Order to include the 2002
Amending Act. [Paras 61, 63, 67-70]
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC
AREAS v. UOI]
1076
SUPREME COURT REPORTS
[2023] 16 S.C.R.
Representation of People's Act - s. 9 - Delimitation Act, 2002 - s.
11 - Non-inclusion of the Limboo Tamang Scheduled Tribes in the 2006
Notifi cation and 2008 Order :
Held: Non-inclusion of Scheduled Tribes in the two Orders is
attributable to the fact that the Constitution itself mandates the delimitation
exercise to be carried out in accordance with the fi gures of the 2001 census
alone and that the subsequent changes to the ST Order have not been
accordingly assimilated with the 2001 fi gures - Delimitation exercise
undertaken in 2006 could not account for the Amending Act of 2002 - Thus,
the non-inclusion of the Limboo Tamang STs is not attributable to a mere
error arising out of an inadvertent slip or omission - Non-inclusion arises
due to a lack of an enabling statutory provision which would accommodate
post-census changes to the delimitation exercise - Omission envisaged by
s.9 and s.11 refers to errors or omissions of a ministerial nature - Entirety
of the ambit of clause (a) of s. 11(1) is to allow the Election Commission
to correct printing mistakes and inadvertent slips or omissions that result
in error - This would not extend to making substantial modifi cations in
the delimitation which was made by the Delimitation Commission in the
exercise of its statutory power. [Paras 74, 75, 77-79]
Constitution of India - Art. 330, 332, 324, 371F - Power of the
Court to grant proportional representation - Scope of - Directions
sought for the grant of proportional representation for Limboo-Tamang
Scheduled Tribes in the House of the People and in the Legislative
Assemblies of West Bengal and Sikkim in terms of the mandate of Arts.
330 and 332:
Held: s. 8 of the Delimitation Act, mandates that the exercise of the
Delimitation Commission's powers in determining reserved seats be in
accordance with the 2001 census having regard to the provisions of Arts
81, 170, 330 and 332 of the Constitution - Delimitation Act or the RP Act
do not require consideration of subsequent changes to the composition
of the Scheduled Castes or Scheduled Tribes Orders in determining the
reserved seats for Scheduled Tribes - Ordinances was promulgated creating
certain provisions expressly enabling readjustment of seats by factoring in
inclusions/exclusions to the Scheduled Tribe lists - However, legislative
eff orts in the form of the Ordinances and Bills, did not eventually result
1077
in the creation of a legislative framework creating a power to enable the
Delimitation Commission and/or the Election Commission to incorporate
changes dehors the 2001 census to the Delimitation Orders - Delimitation
Act and the Representation of the People Act, as they exist presently, do
not create such a legislative framework - For the Court to direct that in
addition to the reservation which has been made in s. 7(1A), Parliament
must necessarily legislate in a particular manner to provide proportional
representation to all the other communities forming a part of the Scheduled
Tribes, would be to trench into the legislative domain - No mandamus
can be issued to Parliament as a legislating body to enact a legislation or
to legislate in a particular manner - These are matters to be factored in by
Parliament, at its discretion - Delimitation of Parliamentary and Assembly
Constituencies Order 2008 forms the basis of the First and Second Schedules
to the RP Act - Delimitation Commission completed its exercise almost
fi fteen years ago - Nearly fi fty-one communities were added after 2001 to
the list of Scheduled Tribes until the last census took place in 2011 - Union
Government to take recourse to the powers under the Delimitation Act 2002
for the purpose of ensuring that the provisions of Arts 330 and 332 are duly
implemented. [Paras 96-98, 100, 101, 103, 105]
Constitution of India - Art. 371F - Special provisions with respect
to the State of Sikkim - Explained and elucidated. [Paras 82-93]
LIST OF CITATIONS AND OTHER REFERENCES
Virendra Pratap and Another vs Union of India and Others (2012) 11
SCC 764; Meghraj Kothari vs Delimitation Commission and Ors, 1966 SCC
OnLine SC 12 paras 10, 11; Shambhu Prasad Sharma vs Charandar Mahant
2023 11 SCC 390; SS Dhanoa vs Union of India [1991] 3 SCR 159: AIR
1991 SC 1745; Mohinder Singh Gill v. The Chief Election Commissioner
AIR 1978 SC 851; Offi cial Liquidator vs Dharti Dhan [1978] 2 SCR 272:
AIR 1977 SC 740; Anand Singh Kunwar v. Election Commission of India
[2007] 8 SCR 909: (2007) 7 SCC 234; Vivek Krishna vs Union of India 2022
SCC OnLine SC 1040; John Paily vs State of Kerala 2021 SCC OnLine
SC 3405 - referred to.
Justice GP Singh, Interpretation of Statutes, 15th Edition pg 365 para
5.6.11 - referred to.
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC
AREAS v. UOI]
1078
SUPREME COURT REPORTS
[2023] 16 S.C.R.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No.443 of
2017.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
With
Writ Petition (c) No.187 of 2019.
Appearances:
Prashant Bhushan, Pranav Sachdeva, Ms. Neha Rathi, Ms. Pritika
Kumar, Vishesh Sharma, Ms. Mithu Jain, Advs. for the Petitioners.
Tushar Mehta, Solicitor General, K M Nataraj, A.S.G., Basava Prabhu
S Patil, AG/Sr. Adv., Rakesh Dwivedi, Ashok Kumar Panda, Sr. Advs., Amit
Sharma, Dipesh Sinha, Ms. Pallavi Barua, Ms. Aparna Singh, Chanchal
Kumar Ganguli, Shashwat Panda, Raghvendra Kumar, Samarth Kashyap,
Devvrat Singh, Shailesh Madiyal, Kanu Agarwal, B K Satija, Ms. Vanshaja
Shukla, Arvind Kumar Sharma, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
DR DHANANJAYA Y CHANDRACHUD, CJI
Contents*
Constitutional Framework .................................................................3
Representation of Peoples Act, 1950 ................................................8
Delimitation Act, 2002 ....................................................................11
Factual Context ...............................................................................14
Submissions on behalf of the Petitioners ........................................22
Submissions on behalf of the Respondents .....................................24
Delimitation Notifi cation of 2006 and the Delimitation Order
of 2008 ............................................................................................26
*
Ed. Note: Pagination is as per the original judgment.
1079
Issues ...............................................................................................29
Analysis: ..........................................................................................30
Whether Delimitation Commission can amend the 2006
Notifi cation under the Delimitation Act ..........................................30
Whether the Election Commission can Amend the 2008
Order to incorporate those changes ............................................33
The Scope of powers of the Election Commission under
Article 324, Constitution of India:..........................................33
Scope of Powers of the Election Commission under RP Act. ...34
Section 9, RP Act and Section 11, Delimitation Act ..............38
Proportional Representation .......................................................41
Conclusion .......................................................................................52
1. The jurisdiction of this Court under Article 32 of the Constitution has
been invoked in two petitions. The fi rst of those petitions seeks a direction
for the grant of proportional representation for the Scheduled Tribes in the
House of the People and in the Legislative Assemblies of West Bengal and
Sikkim in terms of the mandate of Articles 330 and 332 of the Constitution.
2. The second petition seeks more specifically, a direction for
upholding the constitutional rights of the Limboo-Tamang Scheduled
Tribe to reservation of seats in the Sikkim Legislative Assembly. It seeks
directions to amend/strike down the Notification of the Delimitation
Commission dated 4 September 2006 and the Delimitation of Parliamentary
and Assembly Constituencies Order 20081 to the extent that they do not
provide for reservations for members of the Limboo-Tamang Scheduled
Tribe. It additionally seeks directions to the eff ect that Section 7(1A) of the
Representation of People's Act2 is ultra vires the Constitution for the same
reason. The petitioner seeks directions to the Delimitation Commission as
1
"2006 Notifi cation" and "2008 Order"
2
"RP Act"
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC
AREAS v. UOI [DR. DHANANJAYA Y CHANDRACHUD, CJI]
1080
SUPREME COURT REPORTS
[2023] 16 S.C.R.
well as the Election Commission to eff ectuate the mandate of Article 332
of the Constitution, in respect of Limboo Tamang Scheduled Tribe, by
undertaking necessary changes to the 2006 Notifi cation and the 2008 Order.
Constitutional Framework
3. Article 342 of the Constitution empowers the President to specify
the tribal communities of the country which will be designated as Scheduled
Tribes. Communities so designated by the President in the Scheduled Tribes
Order or later added by amendment are treated as Scheduled Tribes for the
purpose of the Constitution, according to Article 366 (25).
4. Article 330 of the Constitution provides for reservation of seats
for Scheduled Castes and Scheduled Tribes in the House of the People.
Clause (2) of Article 330 states that the number of seats reserved in a
State or Union Territory for the Scheduled Castes or Scheduled Tribes
under clause (1) "shall bear, as nearly as may be, the same proportion to
the total number of seats allotted to that State or Union Territory in the
House of People as the population of Scheduled Castes or Schedule Tribes
in that State or Union Territory bears to the total population of the State
or Union Territory".
5. Similar provisions are contained in clause (3) of Article 3323 which
mandates the reservation of seats for Scheduled Castes and Scheduled Tribes
in the Legislative Assemblies of the States. Clause (3) stipulates that the
number of seats so reserved for the Scheduled Castes or Scheduled Tribes
shall be in proportion to the population of the Scheduled Castes or Scheduled
Tribes in the State to the total population of the State.
3
332. Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative
Assemblies of the States.-(1) Seats shall be reserved for the Scheduled Castes and
the Scheduled Tribes, 8 [except the Scheduled Tribes in the autonomous districts of
Assam], in the Legislative Assembly of every State.
...
(3) The number of seats reserved for the Scheduled Castes or the Scheduled Tribes in
the Legislative Assembly of any State under clause (1) shall bear, as nearly as may be,
the same proportion to the total number of seats in the Assembly as the population of
the Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the
State, as the case may be, in respect of which seats are so reserved, bears to the total
population of the State.
1081
6. Three facets of Article 330 and Article 332 need to be noticed at
the forefront. First, Articles 330(1) and 332(1) contain a mandate which
is evident from the use of the expression "seats shall be reserved" for the
Scheduled Castes and Scheduled Tribes in the House of the People and
in the Legislative Assembly of every State. Second, the number of seats
required to be reserved is stipulated in clause (2) of Article 330 and clause
(3) of Article 332. The same principle is adopted by both these provisions,
requiring that the number of seats so reserved shall "as nearly as may be"
bear the same proportion to the total number of seats allotted to the State in
the House of the People and in the Legislative Assembly, as the case may be,
as the proportion of the population of the Scheduled Castes or the Scheduled
Tribes in respect of which seats are so reserved to the total population of
the State. The implementation of the constitutional mandate for reserving
seats for the Scheduled Castes and Scheduled Tribes in the House of the
People and in the State Legislative Assemblies is governed by a statutory
regime which, it will be necessary to advert to in due course. Third, Articles
330 and 332, do not provide for reservations for any particular Scheduled
Caste or Scheduled Tribe.
7. Article 814 of the Constitution provides for the composition of the
4
81. Composition of the House of the People.-(1) Subject to the provisions of article
331, the House of the People shall consist of-
(a) not more than fi ve hundred and thirty members chosen by direct election from
territorial constituencies in the States, and
(b) not more than twenty members to represent the Union territories, chosen in such
manner as Parliament may by law provide.
(2) For the purposes of sub-clause (a) of clause (1),-
(a) there shall be allotted to each State a number of seats in the House of the People
in such manner that the ratio between that number and the population of the State
is, so far as practicable, the same for all States; and
(b) each State shall be divided into territorial constituencies in such manner that the
ratio between the population of each constituency and the number of seats allotted
to it is, so far as practicable, the same throughout the State:
Provided that the provisions of sub-clause (a)of this clause shall not be applicable for
the purpose of allotment of seats in the House of the People to any State so long as the
population of that State does not exceed six millions.
(3) In this article, the expression ―populationǁ means the population as ascertained
at the last preceding census of which the relevant fi gures have been published:
Provided that the reference in this clause to the last preceding census of which the
relevant fi gures have been published shall, until the relevant fi gures for the fi rst census
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC
AREAS v. UOI [DR. DHANANJAYA Y CHANDRACHUD, CJI]
1082
SUPREME COURT REPORTS
[2023] 16 S.C.R.
House of the People. Under Article 81(2)(a), there shall be allotted to each
State a number of seats in the House of the People in such a manner that
the ratio between that number and the population of the State is, so far as
practicable, the same for all States. Article 825 provides for the readjustment
of the seats after each census. It provides that upon the completion of each
census, the allocation of seats in the House of the People to the States 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.
For the purposes of Article 81, clause (3) provides that the expression
"population" means the population as ascertained at the last preceding
census of which the relevant fi gures have been published. However, until
the relevant fi gures for the fi rst census taken after 2026 have been published,
this shall be construed, for the purpose of sub-clause (a) of clause (2), and
its proviso, as a reference to the 1971 census. Regarding the division of each
State into territorial constituencies, it has been provided that the reference
would be to the 2001 census. Analogous provisions are contained in the
proviso to Article 82. Article 170 contains provisions for the composition
of the Legislative Assemblies.
taken after the year 2026 have been published, be construed,-
(i) for the purposes of sub-clause (a) of clause (2) and the proviso to that clause, as
a reference to the 1971 census; and
(ii) for the purposes of sub-clause (b)of clause (2) as a reference to the 2001 census.
5
82. Readjustment after each census.-Upon the completion of each census, the
allocation of seats in the House of the People to the States 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:
Provided that such readjustment shall not aff ect representation in the House of the
People until the dissolution of the then existing House:
Provided further that such readjustment shall take eff ect from such date as the President
may, by order, specify and until such readjustment takes eff ect, any election to the
House may be held on the basis of the territorial constituencies existing before such
readjustment:
Provided also that until the relevant fi gures for the fi rst census taken after the year
2026 have been published, it shall not be necessary to readjust-
(i) the allocation of seats in the House of the People to the States as readjusted on
the basis of the 1971 census; and
(ii) the division of each State into territorial constituencies as may be readjusted on
the basis of the 2001]census,
under this article.
1083
8. Article 327 entrusts Parliament with the power to make provisions
with respect to elections to either House of Parliament or to the Legislature
of a State. Article 329 provides for a bar to the interference by courts in
electoral matters including the validity of any law relating to the delimitation
of constituencies or the allotment of seats to constituencies made under
Articles 327 or 328.
9. Entry 72 of the Union List to the Seventh Schedule deals with
elections to Parliament and to the legislatures of States among other Subjects.
The legislative domain consequently lies exclusively with Parliament in
terms of Articles 245 and 246 read with Entry 72 of List I.
10. For the State of Sikkim, in addition to the constitutional provisions
already noted, a special provision is contained in Article 371F(f) in terms
of which, notwithstanding anything in the Constitution:
"(f) Parliament may, for the purpose of protecting the rights and
interests of the diff erent sections of the population of Sikkim make
provision for the number of seats in the Legislative Assembly of the
State of Sikkim which may be fi lled by candidates belonging to such
sections and for the delimitation of the Assembly constituencies from
which candidates belonging to such sections alone may stand for
election to the Legislative Assembly of the State of Sikkim;"
Representation of Peoples Act, 1950
11. Section 3 of the Representation of the People Act 1950 provides
for the allocation of seats to the States in the House of the People and the
number of seats which are reserved for the Scheduled Castes and for the
Scheduled Tribes as indicated in the First Schedule. Section 7(1), inter alia,
provides that the total number of seats in the Legislative Assembly of each
State specifi ed in the Second Schedule by direct election from Assembly
constituencies and the number of seats reserved for the Scheduled Castes and
for the Scheduled Tribes of the State, shall be as indicated in that Schedule.
As regards the State of Sikkim, specifi c provisions are contained in subsection (1A) of Section 7 which reads as follows:
"7. Total number of seats in Legislative Assemblies and assembly
constituencies. -
...
...
...
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC
AREAS v. UOI [DR. DHANANJAYA Y CHANDRACHUD, CJI]
1084
SUPREME COURT REPORTS
[2023] 16 S.C.R.
(1A) Notwithstanding anything contained in sub-section (1), the
total number of seats in the Legislative Assembly of the State of
Sikkim, to be constituted at any time after the commencement of the
Representation of the People (Amendment) Act, 1980 (8 of 1980),
to be fi lled by persons chosen by direct election from assembly
constituencies shall be thirty-two, of which -
(a)
twelve seats shall be reserved for Sikkimese of Bhutia-Lepcha
origin;
(b) two seats shall be reserved for the Scheduled Castes of that State;
and
(c)
one seat shall be reserved for the Sanghas referred to in section
25A.
Explanation-In this sub-section "Bhutia" includes Chumbipa,
Dopthapa, Dukpa, Kagatey, Sherpa, Tibetan, Tromopa and Yolmo."
12. Sub-section (1A) indicates that the total number of seats in the
Legislative Assembly of Sikkim shall be thirty-two. Of these, twelve seats
are reserved for Sikkimese of Bhutia-Lepcha origin; two seats for the
Scheduled Castes; and one seat for the Sanghas as referred to in Section
25A. Likewise, a specifi c provision in relation to Sikkim is contained in
Section 7A in the following terms:
"7A. Total number of seats in the Legislative Assembly of Sikkim
and assembly constituencies.- (1) Notwithstanding anything
contained in section 7, in the Legislative Assembly of the State of
Sikkim [deemed under the Constitution (Thirty-sixth Amendment) Act,
1975 to be the Legislative Assembly of that State duly constituted], the
total number of seats to be fi lled by persons chosen by direct election
from assembly constituencies shall be 32.
(2) Every Assembly constituency referred to in sub-section (1) shall
be a single-member constituency.
(3) In the Legislative Assembly so deemed to be duly constituted,
the extent of each constituency and the reservation of seats shall
be as provided for immediately before the commencement of the
Constitution (Thirty-sixth Amendment) Act, 1975."
1085
13. The First Schedule to the RP Act provides for the allocation of
seats in the House of the People. The allocation of seats is indicated in two
segments of the First Schedule:
(i) The number of seats in the House as constituted in 2004 on the
basis of the Delimitation Order of 1976; and
(ii) The number of seats in the House as subsequently constituted
on the basis of the Delimitation Order 2008.
14. The total number of seats in the House of the People allocated
to West Bengal is 42, of which 10 are reserved for the Scheduled Castes
and 2 for the Scheduled Tribes. Sikkim has a lone seat in the House of the
People which is unreserved. The Second Schedule of the RP Act prescribes
the total number of seats in the Legislative Assemblies, again bifurcating
the determination on the basis of the Delimitation Order of 1976 and the
Delimitation Order of 2008. For the State of West Bengal, the Legislative
Assembly consists of 294 seats of which 68 are reserved for the Scheduled
Castes and 16 for the Scheduled Tribes under the Delimitation Order of 2008.
For the State of Sikkim, the Legislative Assembly consists of 32 seats of
which two are reserved for the Scheduled Castes and 13 for the Scheduled
Tribes. In terms of the provisions of Section 7(1)(a), the Second Schedule
indicates that 13 seats reserved for the Scheduled Tribes will comprise one
seat for Sanghas and 12 seats for the Sikkimese of Bhutia Lepcha origin.
Delimitation Act, 2002
15. Parliament enacted the Delimitation Act 2002 (Act 33 of 2002)
which, came into force on 3 June 2002. The Act provides for the constitution
of the Delimitation Commission. The Delimitation Commission is required
to readjust the division of each state into territorial constituencies for the
purpose of elections to the House of the People and to the State Legislative
Assemblies.
16. Section 8 provides for readjustment of the number of seats in the
following terms:
"8. Readjustment of number of seals.-The Commission shall,
having regard to the provisions of articles 81, 170, 330 and 332,
..., determine,-
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC
AREAS v. UOI [DR. DHANANJAYA Y CHANDRACHUD, CJI]
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SUPREME COURT REPORTS
[2023] 16 S.C.R.
(a) on the basis of the census fi gures as ascertained at the census held
in the year 1971 and subject to the provisions of section 4, the number
of seats in the House of the People to be allocated to each State and
determine on the basis of the census fi gures as ascertained at the census
held in the year 2001 the number of seats, if any, to be reserved for
the Scheduled Castes and for the Scheduled Tribes of the State; and
(b) on the basis of the census fi gures as ascertained at the census held
in the year 1971 and subject to the provisions of section 4, the total
number of seats to be assigned to the Legislative Assembly of each
State and determine on the basis of the census fi gures as ascertained
at the census held in the year 2001 the number of seats, if any, to be
reserved for the Scheduled Castes and for the Scheduled Tribes of
the State:
..."
17. In terms of Section 8, the Delimitation Commission is empowered
to determine the seats to be allocated to each State in the House of the
People and in the Legislative Assemblies of every State on the basis of the
census fi gures of 1971. The Delimitation Commission is also empowered
to determine the number of seats reserved for the Scheduled Castes and
Scheduled Tribes on the basis of the census of 2001.
Section 9 of the Delimitation Act provides for distribution of these
seats allocated to each state in the House of the People. Section 10 of the
Act pertains to the publication of orders by the Delimitation Commission in
accordance with the exercise of its powers under Sections 8 and 9. Section
10(4) specifi cally states that the orders so published under Section 10 shall
apply to every election to the House of the People and to the Assembly if
such election is held after the publication of such orders. The orders apply
in supersession of all other provisions pertaining to representation and
delimitation contained in any other law, order or notifi cation. Section 10(4)
provides as follows:
"(4) Subject to the provisions of sub-section (5), the readjustment of
representation of the several territorial constituencies in the House of
the People or in the Legislative Assembly of a State and the delimitation
of those constituencies provided for in any such order shall apply
1087
in relation to every election to the House or to the Assembly, as the
case may be, held after the publication in the Gazette of India of that
order and shall so apply in supersession of the provisions relating
to such representation and delimitation contained in any other
law for the time being in force or any order or notifi cation issued
under such law in so far as such representation and delimitation
are inconsistent with the provisions of this Act :..."
(emphasis added)
18. Section 11 empowers the Election Commission to maintain
delimitation orders up-to-date. It provides as follows :
"11. Power to maintain delimitation orders up-to-date.-(1) The
Election Commission may, from time to time, by notifi cation in the
Gazette of lndia and in the Offi cial Gazette of the State concerned,-
(a)
correct any printing mistake in any of the orders made by the
Commission under Section 9 or any error arising therein from
an inadvertent slip or omission; and
(b) where the boundaries or name of any district or any territorial
division mentioned in any of the said orders are or is altered, make
such amendments as appear to it to be necessary or expedient for
bringing the orders up-to-date, so, however, that the boundaries
or areas or extent of any constituency shall not be changed by
any such notifi cation.
(2) Every notifi cation under this section shall be laid, as soon as may
be after it is issued, before the House of the People and the Legislative
Assembly of the State concerned."
19. The position of the law relating to delimitation can be summarized
as follows:
1.
The Delimitation Commission is required to allocate seats
to every State in the House of the People and the Legislative
Assembly on the basis of the Census of 1971. The Commission
has to determine the seats reserved for Scheduled Castes and
Scheduled Tribes based on the 2001 census. This exercise is
required to be undertaken with due regard to the provisions of
Articles 81, 170, 330 and 332 of the Constitution of India;and
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC
AREAS v. UOI [DR. DHANANJAYA Y CHANDRACHUD, CJI]
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SUPREME COURT REPORTS
[2023] 16 S.C.R.
2.
This provision is in line with the Explanation to Article 330 of
the Constitution. The Explanation stipulates that the reference to
'population' in Article 330 and Article 332 is to be construed as
the population ascertained at the last preceding census of which
the relevant fi gures have been published. However, the proviso
states that the reference to the 'last preceding census' in the
Explanation to Article 330 would be construed as a reference to
the 2001 census until relevant fi gures for the fi rst census taken
after 2026 have been published.
Factual Context
20. The 2001 census figures indicate that the Scheduled Tribes
constitute 5.50% and 20.60% of the total population of the States of West
Bengal and Sikkim respectively. The fi gures are stated below:
States
Total Population
Population of the
Scheduled Tribes
Scheduled Tribes as
a percentage of the
total population
West Bengal
8,01,76,197
44,06,794
5.50%
Sikkim
5,40,851
1,11,405
20.60%
21. The Union Government constituted the Delimitation Commission
under the Delimitation Act 2002. The Commission was undertaking the
exercise of delimiting Parliamentary and Assembly constituencies when
Parliament enacted the Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act 20026. The Act came into eff ect on 7 January 2003.
Section 4 of the amending Act read with the Second Schedule appended to
it, amended, inter alia, the Constitution (Scheduled Tribes) Order 1950 and
the Constitution (Sikkim) Scheduled Tribes Order, 1978. The eff ect of the
Amending Act of 2002 was that Limboo and Tamang communities stood
included in the list of Scheduled Tribes for the States of West Bengal and
Sikkim with eff ect from 7 January 2003.
22. Upon the completion of the delimitation exercise, on 26 November
2008, the Delimitation of Parliamentary and Assembly Constituencies Order
2008 was issued by the Election Commission. The Delimitation Order
6
Amending Act of 2002.
1089
stipulated the seats reserved for Scheduled Tribes in the state legislative
assemblies as well as the seats reserved in the House of the People, out of
the total seats allocated to states. For the States of West Bengal and Sikkim,
this is indicated in the following tabulation :
State
Seats reserved for
Scheduled Tribes in the
House of the People,
out of the total seats
reserved for the State.
Seats reserved for
Scheduled Tribes in the
State Legislative Assembly
out of the total seats in the
Assembly.
West Bengal 2 out of 42
16 out of 294
Sikkim
0 out of 1
13 out of 327
23. Though a demand was made by certain castes and tribes designated
as Scheduled Castes and Scheduled Tribes for reservation in the House of
the People and State Legislative Assemblies by taking into account the
additional population as a result of the Amending Act of 2002, the exercise
was never actually carried out.
24. In carrying out the delimitation exercise under Section 9 of the
Delimitation Act, Section 9(2) provides that the Commission shall publish
the delimitation proposals, specify the date after which the proposals shall
be considered by it and consider the objections received before fi nally
determining the delimitation of constituencies. Accordingly, in 2005, the
Delimitation proposal for Assembly constituencies for the State of Sikkim
was published. The number of seats to be reserved for Scheduled Tribes
was to be determined on the basis of the 2001 census and the proposal did
not contain seats reserved for the Scheduled Tribes of Sikkim. It was stated
that unlike clauses 3A and 3B of Article 332, which enables the Delimitation
Commission to deviate from the "generalized procedure as contained in the
Delimitation Act, 2002 read with Delimitation (Amendment) Act 2003" for
certain states, there is no provision which allows a similar deviation from
the generic provisions of the Delimitation Act in order to accommodate the
newly inducted Scheduled Tribes. Various representations were made to the
Delimitation Commission on the ground that the 2001 census alone did not
7
Out of the 13 seats, 12 were reserved for Sikkimese of Bhutia-Lepcha Origin and 1 for
the Sanghas.
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC
AREAS v. UOI [DR. DHANANJAYA Y CHANDRACHUD, CJI]
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SUPREME COURT REPORTS
[2023] 16 S.C.R.
account for the then newly designated Limboo-Tamang Scheduled Tribes
for reservations in the constituencies.
25. However, despite the objections, the 2006 Delimitation Notifi cation
was published without accounting for the Scheduled Tribes designated as
such under the Amending Act of 2002. The 2006 Notifi cation formed the
basis of the 2008 Order issued by the Election Commission under RP Act
1950.
26. It is the case of the petitioners that the 2006 Delimitation Notifi cation
was, to the extent that it did not accommodate the newly inducted Limboo
Tamang Tribes, not corrected by the Election Commission, in the exercise
of its powers under Section 11 of the Delimitation Act. Thus, according
to the petitioners, the 2008 Order published by the Election Commission
under the Representation of People Act 1950, which was a consolidation
of the Orders issued by the Delimitation Commission, was defective to the
extent that it did not account for the Amending Act of 2002. Its defects, the
petitioners claim, were not duly cured by the Election Commission under
Section 9(1)(aa) of the 1950 Act.
27. The petitioners rely on the directions of this Court in the decision in
Virendra Pratap and Another vs Union of India and Others. A writ petition
was instituted seeking directions against the Election Commission to take
steps for proper representation by identifying constituencies for reservations
of the Scheduled Tribes in the Uttar Pradesh Assembly Elections, in
accordance with proportional representation in terms of Article 330 of the
Constitution.8 While agreeing that the Scheduled Tribes had the right to
proportional representation under Articles 330 and 332 of the Constitution,
this Court directed the Election Commission to consider the case of the
Scheduled Tribes and take appropriate steps to ensure their representation
in the House of the People and the Legislative Assembly "in the State". The
Court clarifi ed that while the Election Commission was not being directed
to complete the exercise before the upcoming assembly elections, it was at
liberty to complete the exercise, without disturbing the election schedule:
"8. Accordingly, we dispose of the writ petition by directing the
Election Commission of India, to consider the case of the Scheduled
8
(2012) 11 SCC 764.
1091
Tribes, as indicated in the writ petition and to take appropriate
steps for their representation in the Lower Houses, both in the
Parliament, as well as in the State Assemblies in accordance with
the provisions of the Constitution. The petitioners will be at liberty
to supply necessary details of the fi gures indicated to the Election
Commission of India and the Election Commission may itself also
obtain fi gures from the Registrar General, as suggested by the learned
Attorney General and, thereafter, proceed to take steps in accordance
with the provisions of the Constitution for due representation of the
Scheduled Tribes population."
(emphasis added).
28. The 2008 Delimitation Order came up for the consideration of this
Court in 2012 in its decision in the case of Virendra Pratap (supra) where
the Election Commission as well as the then Attorney General had taken
the position that they would carry out the relevant exercise by considering
the fi gures de hors the 2001 census. The Commission was then directed to
undertake the relevant steps to ensure proportional representation of the
tribes, in accordance with the Constitution.
29. The Central Government appears to have taken the position (as
the Election Commission informs the Court on affi davit) that the benefi t
of reservation should be extended to all those castes and tribes which
were designated by the Amending Act of 2002 and thereafter until 31 May
2012.