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High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. M.Y. EQBAL & THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM
K. Sridhar Kumar
Versus
Union of India Rep. by the Secretary & Others
W.P.Nos.24612, 23144, 25021, 24500, 24501, 25469, 25296, 23617, 24142, 24648, 22791, 24796 of 2010 & W.P.(MD).No.12917 of 2010 & M.P.Nos.1,2,3 of 2010
Decided On : 16-12-2010
Presidential Notification dated 30.09.2010, called the Delimitation of Council Constituencies (Tamil Nadu) Order 2010 (hereinafter referred to as the 'Delimitation Order ') is in contravention of the Representation of the Peoples Act 1950 (hereinafter referred to as the 'RP Act 1950'); that the same is ineffective without prior approval of the Parliament and therefore, liable to be struck down as unconstitutional, null and void.
Fact of the Case:
The matter concerns creation of a Legislative Council in the State of Tamil Nadu. The Legislative Assembly of Tamil Nadu passed a resolution for creation of a Legislative Council on 12.04.2010 and the said resolution was passed by 2/3rd majority as required under Article 169 (1) of the Constitution of India. The Council of States on 05.05.2010 passed the Tamil Nadu Legislative Bill, 2010, which was passed by the Lok-Sabha and got the Presidential Assent on 18.05.2010. Thereafter, it was published in the Gazette on the same day on 18.05.2010 and republished by the order of Governor of Tamil Nadu on 20.05.2010.
Finding of the Court:
The Presidential order dated 30.09.2010 delimiting the constituencies has been made under Section 3(3) of Act 16 of 2010 and not under Section 10 and 11 of the RP Act, 1950, and as Act 16 of 2010 does not provide for placing the order before the Parliament the same does not suffer from any illegality or unconstitutionality. Act 16 of 2010, being a law relating to delimitation of constituencies made under Article 327 of the Constitution, the same cannot be questioned in a petition under Article 226 of the Constitution as there is a clear bar under Article 329(a) of the Constitution. Act 16 of 2010 is a law enacted by the Parliament for creation of a Legislative Council in the State of Tamil Nadu under Article 169 of the Constitution and not revival thereof. In view of the three tire system brought about by the 1994 amendment to the Tamil Nadu Panchayat Act, Section 4 of Act 16 of 2010 is not violative of Article 14 of the Constitution. In view of the mandate in Article 171(3)(c) of the Constitution which states that 1/12th shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in educational institutions not lower in standard than that of secondary school question of including middle school teachers as part of electorate to the teachers constituency does not arise. The action of the Election Commission is neither illegal nor unconstitutional.
Issues: 1. Whether the Presidential Notification dated 30.09.2010, called the Delimitation of Council Constituencies (Tamil Nadu) Order 2010 (hereinafter referred to as the 'Delimitation Order ') is in contravention of the Representation of the Peoples Act 1950 (hereinafter referred to as the 'RP Act 1950'); 2. Whether the Delimitation Order is ineffective without prior approval of the Parliament and therefore, liable to be struck down as unconstitutional, null and void.
Ratio Decidendi: 1. The Presidential order dated 30.09.2010 delimiting the constituencies has been made under Section 3(3) of Act 16 of 2010 and not under Section 10 and 11 of the RP Act, 1950, and as Act 16 of 2010 does not provide for placing the order before the Parliament the same does not suffer from any illegality or unconstitutionality. 2. Act 16 of 2010, being a law relating to delimitation of constituencies made under Article 327 of the Constitution, the same cannot be questioned in a petition under Article 226 of the Constitution as there is a clear bar under Article 329(a) of the Constitution. 3. Act 16 of 2010 is a law enacted by the Parliament for creation of a Legislative Council in the State of Tamil Nadu under Article 169 of the Constitution and not revival thereof. 4. In view of the three tire system brought about by the 1994 amendment to the Tamil Nadu Panchayat Act, Section 4 of Act 16 of 2010 is not violative of Article 14 of the Constitution. 5. In view of the mandate in Article 171(3)(c) of the Constitution which states that 1/12th shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in educational institutions not lower in standard than that of secondary school question of including middle school teachers as part of electorate to the teachers constituency does not arise. 6. The action of the Election Commission is neither illegal nor unconstitutional.
Final Decision: Writ Petitions are dismissed.
T.S. SIVAGNANAM, J.
1. As common questions of law and fact arise for consideration in this batch of 13 writ petitions, they were heard together and are disposed of by this common order.
2. The matter concerns creation of a Legislative Council in the State of Tamil Nadu. The Legislative Assembly of Tamil Nadu passed a resolution for creation of a Legislative Council on 12.04.2010 and the said resolution was passed by 2/3rd majority as required under Article 169 (1) of the Constitution of India. The Council of States on 05.05.2010 passed the Tamil Nadu Legislative Bill, 2010, which was passed by the Lok-Sabha and got the Presidential Assent on 18.05.2010. Thereafter, it was published in the Gazette on the same day on 18.05.2010 and republished by the order of Governor of Tamil Nadu on 20.05.2010. Earlier a writ petition was filed in the nature of a public interest litigation in W.P.No.24613 of 2010 wherein the petitioner sought for issuance of writ of declaration for declaring the provisions of the Tamil Nadu Legislative Council Act, 2010 as unconstitutional and void ab-initio. This Bench by its order dated 09.10.2010, dismissed the writ petition as devoid of merits. The operative portion of the order is as under:- "13. The Constitution Bench of the Supreme Court, while deciding the question as to the validity of the 24th, 25th and 29th amendments to the Constitution in Kesavananda Bharati -Vs - State of Kerala, (1973) 4 SCC 225, discussed different Articles, including Article 169 of the Constitution of India. Their Lordships observed as under: - “62. In the Constitution the word “amendment” or “amend” has been used in various places to mean different things. In some articles, the word “amendment” in the context has a wide meaning and in another context it has a narrow meaning. In Article 107, which deals with legislative procedure, clause (2) provides that “subject to the provisions of Articles 108 and 109, a Bill shall not be deemed to have been passed by the House of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses”. It is quite clear that the word “amendment” in this article has a narrow meaning. Similarly, in Article 111 of the Constitution, whereby the President is enabled to send a message requesting the Houses to consider the desirability of introducing amendments, the word “amendments” has a narrow meaning. 63. The opening of Article 4 (1) reads: “4. (1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law”.” Here the word “amendment” has a narrower meaning. “Law” under Articles 3 and 4 must “conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise is not the power to override the constitutional scheme. No state can, therefore, be formed, admitted or set up by law under Article 4 by the Parliament which has no effective legislative, executive and judicial organs”. . (Per Shah, J. - Mangal Singh v. Union of India).(Emphasis supplied). 64. Article 169(2) reads: “Any law referred to in clause (1) shall contain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary.” Here also the word “amendment” has a narrow meaning.” Further their Lordships observed as under: - (para 64 page 317) 64. Any law referred to in clause (1) shall contain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary” 14. In the instant Act, as noticed above, Sections 4 & 5 of the Act make provisions
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