Holding that the manner in which delimitation of constituencies was carried out was not subject to challenge, the Supreme Court in its recent decision in J & K National Panthers Party v. Union of India declared that while "right to caste vote is a valuable right but to demand any uniform value of one’s voting right through the process of delimitation, disregarding the statutory and constitutional dispensation based on historical reasons is not a justiciable right."
Dismissing the appeal of the political party against the decision of the High Court of Jammu and Kashmir, the Supreme Court inter alia observed as under;
17. In the judgment impugned herein, the High Court held that our Constitution never contemplated equality in the value of vote in view of the several other provisions of the Constitution. Supporting the judgment, the learned Solicitor General of India drew the attention of this Court to the various provisions of the Constitution of India namely, Articles 81, 82 and 170. The learned Solicitor General also referred to a decision of the Constitution Bench of this Court in R. C. Poudyal and others vs. Union of India and others, (1994) Supp 1 SCC 324, wherein this Court examined Article 170 (2) while dealing with the reservation of 12 seats for Sikkimese of Bhutia-Lepcha origin in the State of Sikkim. One of the main questions which were raised in that case is as follows:
“Whether Section 7(1-A) and Section 25-A of the Representation of the People Act, 1950 [as inserted by Election Laws (Extension to Sikkim) Act, 1976 and Representation of the People (Amendment) Act, 1980 respectively] and section 5-A (2) of the Representation of the People Act, 1951 [as inserted by the Representation of the People (Amendment) Act, 1980] providing for reservation of 12 seats, out of 32 seats in the Sikkim Legislative Assembly in favour of Bhutias-Lepchas, are unconstitutional as violative of the basic features of democracy and republicanism under the Indian Constitution?” (Para 85, page 373 of the report)
18. While deciding the said issue, this Court took into consideration the decisions of the Supreme Court of the United States in Charles W. Baker [supra], and B. A. Reynolds etc. vs. M. O. Sims - 377 US 533. 19. This Court relied on the opinion of Chief Justice Earl Warren in B.A. Reynolds (supra). At page 536 of the report the learned Chief Justice held as follows:-
“……We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.”
20. The learned Chief Justice also relied on historical factors in support of his opinion and held:-
“History indicates, however, that many States have deviated, to a greater or lesser degree, from the equal-population principle in the apportionment of seats in at least one house of their legislatures. So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature.” (page 537 of the report)
21. After relying on the aforesaid judgments and noticing the position in Australian Constitution the majority opinion of this Court was rendered by Justice Venkatachaliah (as His Lordship then was). By a remarkably erudite formulation of principles, His Lordship held:-
“It is true that the right to vote is central to the right of participation in the democratic process. However, there is less consensus amongst theorists on the propriety of judicial activism in the voting area. In India, the Delimitation Laws made under Article 327 of the Constitution of India, are immune from the judicial test of their validity and the process of allotment of seats and constituencies is not liable to be called in question in any court by virtue of Article 329 (a) of the Constitution.” (Para 119, page 383 of the report)
22. It was repeatedly held in Poudyal (supra) that “a perfectly arithmetical equality of value of votes is not a constitutionally mandated imperative of democracy and, secondly, that even if the impugned provisions make a departure from tolerance limits and the constitutionally permissible latitudes, the discriminations arising are justifiable on the basis of the historical considerations peculiar to and characteristic of the evolution of Sikkim’s political institutions.”
23. In this case the same is true of the evolution of the political institutions of Jammu and Kashmir. This position has been again reiterated in para 126 in Poudyal’s case in the following words:
“An examination of the constitutional scheme would indicate that the concept of ‘one person one vote’ is in its very nature considerably tolerant of imbalances and departures from a very strict application and enforcement. The provision in the Constitution indicating proportionality of representation is necessarily a broad, general and logical principle but not intended to be expressed with arithmetical precision…The principle of mathematical proportionality of representation is not a declared basic requirement in each and every part of the territory of India. Accommodations and adjustments, having regard to the political maturity, awareness and degree of political development in different parts of India, might supply the justification for even non-elected Assemblies wholly or in part, in certain parts of the country. The differing degrees of political development and maturity of various parts of the country, may not justify standards based on mathematical accuracy.” (Page 385 of the report)
24. Even Justice S.C. Agrawal, who partly dissented with the majority, agreed with the majority opinion on this aspect of the matter by holding as under:-
“The principle of one man one vote envisages that there should be parity in the value of votes of electors. Such a parity though ideal for a representative democracy is difficult to achieve. There is some departure in every system following this democratic path. In the matter of delimitation of constituencies, it often happens that the population of one constituency differs from that of the other constituency and as a result although both the constituencies elect one member, the value of the vote of the elector in the constituency having lesser population is more than the value of the vote of the elector of the constituency having a larger population…”. (para 182, page 402 of the report)
25. On a perusal of the aforesaid principles as laid down by this Court in the Constitution Bench judgment, we are of the opinion that a right to caste vote is a valuable right but to demand any uniform value of one’s voting right through the process of delimitation, disregarding the statutory and constitutional dispensation based on historical reasons is not a justiciable right.
26. In the context of this question we must keep in mind the constitutional scheme in Part XV relating to election. Article 327 of the Constitution empowers the Parliament to make a law relating to delimitation of constituencies. The mandate of Article 329A is that any law relating to the delimitation of constituencies or the allotment of seats to such constituencies shall not be called in question in any Court. Identical provisions have been made in Section 142 of the Constitution of J & K. Section 142(a) is set out below:-
“142. Bar to interference by courts in electoral matters. – Notwithstanding anything in this constitution- (a) the validity of any law relating to the delimitation of territorial constituencies for the purpose of electing members of the Legislative Assembly or the allotment of seats to such constituencies, made or purporting to be made under section 141, shall not be called in question in any court;”
27. It is, therefore, clear that there is an express constitutional bar to any challenge being made to the delimitation law which is made under Constitutional provisions. Therefore, the substantial challenge of the appellant in this proceeding is not to be entertained by any Court, including this Court. The other aspect of the question is that the amendment to Section 47(3) of the Constitution of J & K violates Basic Structure of the Constitution. This challenge is also not based on a sound principle.
28. The judgment of this Court in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and another, (1973) 4 SCC 225, which introduced the concept of Basic Structure in our constitutional jurisprudence is the spontaneous response of an activist Court after working with our Constitution for about 25 years. This Court felt that in the absence of such a stance by the constitutional Court there are clear tendencies that the tumultuous tides of democratic majoritarianism of our country may engulf the constitutional values of our nascent democracy. The judgment in Kesavananda Bharti (supra) is possibly an “auxiliary precaution against a possible tidal wave in the vast ocean of Indian democracy”.
29. But we must have a clear perception of what the Basic Structure is. It is hazardous to define what is the Basic Structure of the Constitution as what is basic does not remain static for all time to come. However, the basic features have been culled out from various pronouncements of this Court. In the 14th Edition of Shorter Constitution of India by D.D. Basu, these features have been noted as under:-
“(a) Supremacy of the Constitution.(a) Rule of law.(b) The principle of Separation of Powers.(c) The principles behind fundamental rights.(d) The objectives specified in the Preamble to the Constitution.(e) Judicial review; Art.32.; Arts.226/227.(f) Federalism(g) Secularism.(h) The sovereign, democratic, republican structure.(i) Freedom and dignity of the individual.(j) Unity and integrity of the Nation.(k) The principle of equality; not every feature of equality, but the quintessence of equal justice(l) The rule of equality in public employment.(m) The ‘essence’ of other Fundamental Rights in Part III.(n) The concept of social and economic justice-to build a welfare State; part IV in toto.(o) The balance between Fundamental Rights and Directive Principles.(p) The Parliamentary system of government.(q) The principle of free and fair elections.(r) Limitations upon the amending power conferred by Art. 368.(s) Independence of the judiciary; but within the four corners of the Constitution and not beyond that.(t) Independent and efficient judicial system.(u) Powers of the Supreme Court under Arts. 32, 136, 141, 142.(v) Effective access to justice.” (see page 2236-2238)
30. Of these features ‘free and fair election’ in Clause (r) comes closest with the question discussed in this case.
31. This Court has already held relying on the Constitution Bench judgment in Poudyal (supra) that ensuring uniformity in the value of votes is not a constitutionally mandated imperative of free and fair election under our constitutional dispensation. Therefore, the argument on the question of Basic Structure is also without substance and is rejected.
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