Supreme Court of India

PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC AREAS AND ANRversusUNION OF INDIA & ORS.

Citation: 2023 INSC 1086
Decided: 23 November 2023
Disposal: Disposed off
Bench: D Y CHANDRACHUD

Holding

The Court held that neither the Delimitation Commission nor the Election Commission can amend the 2006 Notification or the 2008 Order to provide additional reservation for the Limboo‑Tamang Scheduled Tribes, and that such changes require a legislative amendment, not a judicial mandamus.

Summary

The Public Interest Committee sought proportional representation for the Limboo‑Tamang Scheduled Tribes in the Lok Sabha and the legislative assemblies of West Bengal and Sikkim, arguing that the 2006 Delimitation Notification and the 2008 Delimitation Order failed to incorporate the tribes after their inclusion under the 2002 Amending Act. The petitioners asked the Court to direct the Delimitation Commission and the Election Commission to amend these orders and to declare Section 7(1A) of the Representation of the People Act ultra‑vires. The Court held that the 2006 Notification, once published, acquires the force of law under Article 329 and cannot be altered except before its final publication, and that the Election Commission’s powers under Sections 8, 9 and 11 of the RP Act are limited to correcting printing errors or inadvertent slips, not to substantive re‑delimitation. The Court further observed that Articles 330 and 332 require reservation based on the 2001 census figures and that any change to accommodate post‑census additions requires legislative amendment, not judicial mandamus. Consequently, the Court dismissed the petitions, directing the Union Government to consider legislative action if it wishes to adjust the seats. The judgment also clarified that the Court cannot compel Parliament to legislate on proportional representation for the Limboo‑Tamang tribes.

Issues considered

The scope of the Delimitation Commission's power to amend the 2006 Delimitation Notification under the Delimitation Act, 2002.
The extent of the Election Commission's authority under Sections 8, 9 and 11 of the Representation of the People Act, 1950 to amend the 2008 Delimitation Order to include newly designated Scheduled Tribes.
Whether Articles 330 and 332 of the Constitution obligate the courts to direct proportional representation for the Limboo‑Tamang Scheduled Tribes absent a legislative framework.
Whether Section 7(1A) of the Representation of the People Act, 1950 is ultra‑vires the Constitution in the context of Sikkim's reservation scheme.
The propriety of issuing a writ of mandamus against Parliament or the Union Government to enact the required changes.

Legislation cited

Delimitation Act, 2002s. 10, s. 11, s. 8, s. 9
Representation of the People Act, 1950s. 3, s. 7, s. 8, s. 9

Subjects

delimitationreservationscheduled tribesproportional representationArticle 330Article 332Election CommissionDelimitation CommissionmandamusArticle 329Article 324Article 371FWest BengalSikkim

Judgment

[2023] 16 S.C.R. 1074 : 2023 INSC 1086

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 eﬀectuate the mandate
of Art. 332 of the Constitution, in respect of Limboo Tamang Scheduled
Tribe, by undertaking necessary changes to the Delimitation Notiﬁcation
of 2006 and the Delimitation Order of 2008.
Delimitation Act, 2002 – Delimitation Notification of 2006
under – Petitioners case that 2006 Delimitation Notiﬁcation 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 Notiﬁcation of 2006:
Held: In view of Art. 329 of the Constitution, the Delimitation
Notiﬁcation of 2006 cannot be called into question – Any changes to the 2006
Notiﬁcation, could only have been made in accordance with the Delimitation
Act – Act envisages changes/suggestions only until the publication of the
ﬁnal notiﬁcation, consequent to which, the notiﬁcation 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 ﬁnal notiﬁcation – Once published,
the Notiﬁcation cannot be amended even by the Delimitation Commission

1074
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC 1075
AREAS v. UOI]

under the 2002 Act – Thus, the Delimitation Commission cannot amend the
Delimitation Notiﬁcation 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 ﬁeld – 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 ﬁeld-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 notiﬁcation or order relating to delimitation” of constituencies issued
u/s. 8A or under any other Central Act, and not all orders and notiﬁcations
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]
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
Notiﬁcation 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 ﬁgures of the 2001 census
alone and that the subsequent changes to the ST Order have not been
accordingly assimilated with the 2001 ﬁgures – 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 modiﬁcations 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
eﬀorts in the form of the Ordinances and Bills, did not eventually result
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC 1077
AREAS v. UOI]

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
ﬁfteen years ago – Nearly ﬁfty-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; Oﬃcial 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.
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 Notiﬁcation of 2006 and the Delimitation Order
of 2008 ............................................................................................26
* Ed. Note: Pagination is as per the original judgment.
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC 1079
AREAS v. UOI [DR. DHANANJAYA Y CHANDRACHUD, CJI]

Issues ...............................................................................................29
Analysis: ..........................................................................................30
Whether Delimitation Commission can amend the 2006
Notiﬁcation 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 ﬁrst 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 eﬀect 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 Notiﬁcation” and “2008 Order”
2 “RP Act”
1080 SUPREME COURT REPORTS [2023] 16 S.C.R.

well as the Election Commission to eﬀectuate the mandate of Article 332
of the Constitution, in respect of Limboo Tamang Scheduled Tribe, by
undertaking necessary changes to the 2006 Notiﬁcation 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 332 3 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.
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC 1081
AREAS v. UOI [DR. DHANANJAYA Y CHANDRACHUD, CJI]

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 ﬁve 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 ﬁgures have been published:
Provided that the reference in this clause to the last preceding census of which the
relevant ﬁgures have been published shall, until the relevant ﬁgures for the ﬁrst census
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 ﬁgures have been published. However, until
the relevant ﬁgures for the ﬁrst 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 aﬀect representation in the House of the
People until the dissolution of the then existing House:
Provided further that such readjustment shall take eﬀect from such date as the President
may, by order, specify and until such readjustment takes eﬀect, 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 ﬁgures for the ﬁrst 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.
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC 1083
AREAS v. UOI [DR. DHANANJAYA Y CHANDRACHUD, CJI]

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 diﬀerent 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 ﬁlled 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 speciﬁed 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, speciﬁc provisions are contained in sub-
section (1A) of Section 7 which reads as follows:
“7. Total number of seats in Legislative Assemblies and assembly
constituencies. —
… … ...
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 ﬁlled 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 speciﬁc 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 ﬁlled 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.”
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC 1085
AREAS v. UOI [DR. DHANANJAYA Y CHANDRACHUD, CJI]

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,—
1086 SUPREME COURT REPORTS [2023] 16 S.C.R.

(a) on the basis of the census ﬁgures 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 ﬁgures 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 ﬁgures 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 ﬁgures 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 ﬁgures 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) speciﬁcally 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 notiﬁcation. 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
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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 notiﬁcation 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 notiﬁcation in the
Gazette of lndia and in the Oﬃcial 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 notiﬁcation.
(2) Every notiﬁcation 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
1088 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 ﬁgures 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 ﬁgures for the ﬁrst 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 ﬁgures are stated below:
States Total Population Population of the Scheduled Tribes as
Scheduled Tribes 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 eﬀect 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 eﬀect 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 eﬀect 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.
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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 Seats reserved for
Scheduled Tribes in the Scheduled Tribes in the
House of the People, State Legislative Assembly
out of the total seats out of the total seats in the
reserved for the State. 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 ﬁnally
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.
1090 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 Notiﬁcation
was published without accounting for the Scheduled Tribes designated as
such under the Amending Act of 2002. The 2006 Notiﬁcation 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 Notiﬁcation
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 clariﬁed 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.
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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 ﬁgures indicated to the Election
Commission of India and the Election Commission may itself also
obtain ﬁgures 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 ﬁgures 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 aﬃdavit) that the beneﬁt
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. A succession of three Ordinances came to be promulgated by the
President under Article 123 of the Constitution. The ﬁrst of them called
the Readjustment of Representation of Scheduled Castes and Scheduled
Tribes in Parliamentary and Assembly Constituencies Ordinance 2013
was promulgated on 30 January 2013, inter alia, empowering the Election
Commission to readjust the representation of SCs/STs in Parliamentary and
Assembly constituencies in all States and Union Territories on the basis of
the revised population of 2001 estimated by the Registrar General by taking
into account the relevant Acts which were enacted by Parliament between
2002 and 31 May 2012. Though the Ordinance was sought to be replaced
by an Act of Parliament, the Bill was referred to the Parliamentary Standing
Committee which, in its Report dated 5 May 2013, recommended the passage
of the Bill. The Bill was,however, not converted into law.
1092 SUPREME COURT REPORTS [2023] 16 S.C.R.

30. A second Ordinance was issued on 5 June 2013. The Ordinance
lapsed. A third Ordinance was promulgated on 27 September 2013.
31. In pursuance of the third Ordinance, the Registrar General of
India completed the exercise of estimating the revised population ﬁgures
of Scheduled Castes and Scheduled Tribes by taking into account changes
that were made under Article 342 of the Constitution by the inclusion of
additional castes and tribes up to 31 May 2012. The Election Commission
made necessary adjustments only in respect of the State of Uttar Pradesh,
while the provisions of the third Ordinance were in force. However, the
Election Commission has stated in its counter that in terms of the revised
Scheduled Castes and Scheduled Tribes’ population ﬁgures which were
ascertained by the Registrar General of India in 2013, an increase of one seat
each for the Scheduled Castes and the Scheduled Tribes was found in respect
of West Bengal while no increase was found for seats for Scheduled
Castes and Scheduled Tribes in Sikkim. This, the Court is informed, was
as a result of the provisions of Section 7A of the RP Act.
32. The third Ordinance which was promulgated by the President in
2013 lapsed. No law has been enacted by Parliament either in terms of the
provisions of the Ordinance or bearing on the subject matter of the dispute
in the present case. However, in 2018, the Union Ministry of Home Aﬀairs 9
initiated an exercise to increase the seats in the Legislative Assembly from
32 to 40 so as to provide for the reservation of seats for the Limboo and
Tamang Tribes. On 30 July 2005, a communication was addressed by MHA
to the Chief Secretary of the State of Sikkim, proposing that the State could
choose one of three options for implementing it:
“(i) The reservation for Limboos and Tamang may be considered out of
the 17 un-reserved Assembly seats at present on the basis of proportion
of their population to the total population, without increasing the size
of the State Legislature;
(ii) The strength of State Legislature may be increased to 40 and
reservation for Limboos and Tamangs may be considered out of 25
seats (17 un-reserved at present + 8 additional seats) subject to the

“MHA”
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condition that in the event of any new communities being declared as
ST in future they may also be accommodated within the overall size of
40 without having to request further increase in the number of seats;
(iii) The strength ·of the State Legislature may be increased to 60 to
bring at par with other States and in conformity with Article 171(1)
and reservation for Limboos and Tamangs may be considered in
proportion to their population out of the 45 seats (17 un-reserved
seats + 28 additional seats) subject to the condition that in the event
of any new communities being declared as ST in future they will also
be accommodated within the over all strength of 60 without having to
ask for any further increase in the strength of the Assembly.”
33. The Chief Secretary of the State of Sikkim responded to the
communication stating that the second option was acceptable in terms of
which the seats in the Sikkim State Legislative Assembly would be increased
from 32 to 40 so as to allow reservation for Limboo and Tamang Scheduled
Tribes. On 4 April 2018, MHA again, initiated the exercise to increase the
seats in the Legislative Assembly of Sikkim from 32 to 40 and to provide
reservation for Limboo and Tamang Tribes while seeking the views of the
Election Commission. The Election Commission responded on 4 April
2018. Thereafter, MHA addressed a communication to the Secretary of
the Legislative Department in the Ministry of Law and Justice intimating
that a “revised draft cabinet note and draft RPA (Amendment) Bill 2018
had been seen and approved by the Honourable Home Minister of India”.
No further steps seem to have taken place thereafter after the exchange of
these communications.
34. Counter aﬃdavits have been ﬁled in these proceedings by the
Election Commission of India, the State of West Bengal and the State of
Sikkim. The Election Commission has stated that presently, it has no power
to make any changes in the delimitation orders passed by the Delimitation
Commission in the States of West Bengal and Sikkim. According to the
Election Commission, readjustment of seats requires an enabling provision
in the law empowering it to undertake such an exercise. No action has
been taken in the matter by MHA or by the Union and hence according
to the Election Commission, it is unable to proceed further. The Election
Commission also states that readjustment of seats would involve necessary
amendments to the RP Act, among other legislation.
1094 SUPREME COURT REPORTS [2023] 16 S.C.R.

35. The State of West Bengal, has stated that in terms of the census of
2011, 52,96,953 persons belong to the Scheduled Tribes representing 5.8%
of the total population and consequently, 6% of the seats in the Legislative
Assembly are reserved for the Scheduled Tribes. Sixteen seats are stated to
have been reserved in the Legislative Assembly and two seats in the Lok
Sabha for the Scheduled Tribes. On 15 February 2006, a notiﬁcation was
published by the Delimitation Commission allotting 42 seats in the House
of People and 294 in the Legislative Assembly to the State of West Bengal.
The State of West Bengal has also stated that the delimitation notiﬁcation
was based on the census of 2001 and any exercise of delimitation would
have to take place within the ambit and purview of Delimitation Act 2002.
36. The State of Sikkim has stated that the Government of Sikkim has
been repeatedly requesting the Government of India to take immediate steps
to provide reservation to the Limboo and Tamang Tribes in the Legislative
Assembly of the State. The correspondence between the State and Union
Governments, as detailed in the preceding paragraphs, has however, not led
to the implementation of the proposal to increase the seats in the legislative
assembly of the State.
Submissions on behalf of the Petitioners
37. We have heard Mr Prashant Bhushan and Ms Pritika Kumar,
counsel appearing on behalf of the petitioners.
38. The petitioners are aggrieved by the non-representation of the
Limboo and Tamang Scheduled Tribes in the House of the People and the
State Legislative Assemblies, in accordance with Articles 330 and 332 of
the Constitution. The provisions stipulate that the Scheduled Tribes will
be given reservations in the House of the People as well as the Legislative
Assemblies, and that this reservation shall, as nearly as may be, proportionate
to their population to the total population of the state. They challenge the
2006 Notiﬁcation and 2008 Order on the ground that the Delimitation
Commission and the Election Commission have overlooked the Amending
Act of 2002 which included, inter alia, these two tribes to the Scheduled
Tribes’ List. Accordingly, it has been submitted that the two orders, are
defective and an election notiﬁcation based on these orders, would also be
in violation of Articles 330 and 332.
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39. The primary submission urged on their behalf is that unlike Article
15 of the Constitution, which contains enabling provisions for reservation,
Articles 330 and 332 contain a mandate for reservation. Moreover, it has
been submitted that the mandate is that proportional reservation has to be
provided for the Scheduled Castes and Scheduled Tribes based on the ratio
which their population bears to the total population of the State. Hence, it
has been urged:
• First, that there is a constitutional mandate and the entitlement
of the Limboo and Tamang communities as Schedules Tribes
which stems from the Amending Act of 2002, whereby they were
designated as Scheduled Tribes. Accordingly, it is the plain duty
of the Union Government and the Election Commission to act
in pursuance of their statutory and constitutional powers. To the
extent that the 2006 Notiﬁcation and the 2008 Order and Section
7(1A) of the RP Act do not account for the Limboo and Tamang
Scheduled Tribes, they violate this mandate;
• Second, the Election Commission is empowered, under Article
324 of the Constitution, to issue directions for the readjustment
of seats to reserved constituencies;
• Third, the provisions of Section 11 of the Delimitation Act
and Section 9(1)(aa) of the Representation of People Act 1950
suﬃciently empower the Election Commission to correct any
omission. Such an omission, it has been urged, took place when
the Delimitation Commission did not include any seats in the
reservation list for Limboo and Tamang communities;and
• Fourth, the judgment of this Court in Virendra Pratap’s case
(supra), which was rendered on 10 January 2012, was not
conﬁned only to the Respondents in that case, namely, the State of
Uttar Pradesh. Just asin the manner that the Election Commission
implemented the judgment for the State of Uttar Pradesh, it ought
to have done the same thing for other communities designated
as Scheduled Castes or Scheduled Tribes since 2002.
Submissions on behalf of the Respondents
40. On the other hand, it has been urged by both Mr KM Natraj,
Additional Solicitor General appearing on behalf of the Union of India and
1096 SUPREME COURT REPORTS [2023] 16 S.C.R.

Mr Amit Sharma, counsel appearing on behalf of the Election Commission
that:
• First, the exercise of delimitation has to be carried out within
the framework of the Delimitation Act 2002.
• Second, the legislative framework for reservation of seats
requires an amendment to the RP Act in order to provide for
such reservations. Such an amendment is exclusively the
mandate of Parliament, and not the Election Commission. In
the absence of an enabling legislation, the powers under Article
324 alone, would not warrant such an exercise at the instance
of the Election Commission. In fact, in order to create such an
enabling provision, three Ordinances were promulgated in 2013,
which eventually lapsed and the power could not be granted to
the Election Commission.
• Third, the power under Section 11 of the Delimitation Act 2002
cannot be extended to mean the power to carry out readjustment
of seats or to provide for reservations for additional castes and
tribes in the manner which the petitioners suggest.
41. Mr Rakesh Dwivedi and Mr Ashok Panda, senior counsel appearing
on behalf of the State of West Bengal have broadly adopted the submissions
of the Election Commission regarding the need for an enabling statutory
amendment. Mr Rakesh Dwivedi has highlighted that the provisions of the
Constitution do not earmark reservations for each SC/ST separately but
provide for reservations for the SC/STs as a whole in relation to each state
in the House of People and legislative assemblies.
42. Against this backdrop, the petitioners seek directions to give
eﬀect to the constitutional right of the Limboo-Tamang Scheduled Tribes.
They seek directions to the Delimitation Commission to amend its 2006
Notiﬁcation to that extent; and directions to the Election Commission, to
incorporate the amendments to its 2008 Order; and to make corrections to
the Delimitation Commission’s 2006 Notiﬁcation and the 2008 Order. As
they stand, the 2006 Notiﬁcation and 2008 Order, are based on the 2001
census and do not incorporate the subsequent additions/adjustments made
to the Scheduled Tribes Orders whereby, inter alia, the Limboo Tamang
Tribes were designated as Scheduled Tribes.
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Delimitation Notiﬁcation of 2006 and the Delimitation Order of
2008
43. Entry 72 of the Union List of the Seventh Schedule deals with
elections to Parliament and the State Legislatures. Article 327 of the
Constitution empowers Parliament to make provisions by law with respect
to all matters relating to or in connection with elections to either House of
Parliament or to the legislatures of the States including:
(i) Preparation of electoral rolls;
(ii) Delimitation of constituencies; and
(iii) All matters necessary for securing the due constitution of the
House.
44. The Delimitation Act 2002 is an outcome of the exercise of the
power to legislate on the subject of delimitation. The provisions of the
Act which have been noted earlier, indicate that the statutory function of
the Delimitation Commission includes specifying reserved seats in the
Legislative Assemblies for the Scheduled Castes and Scheduled Tribes.
45. The Election Commission has a broad mandate in terms of Article
324 in regard to the superintendence, direction and control of elections.
Article 324(1) provides for the superintendence, direction and control of
the preparation of the electoral rolls and stipulates that the conduct of all
elections to Parliament and to the State Legislature shall be vested in the
Election Commission. The Constitution has drawn a careful balance between
the broader powers of the Election Commission over the superintendence,
direction and control of electoral rolls and the conduct of elections on the one
hand, and the legislative power of Parliament under Article 245 and Article
246 on the other hand read with Entry 72 of the Union List in the Seventh
Schedule. The power of Parliament in its legislative domain is coupled with
its constitutional function under Article 327. The Election Commission has
categorically stated before this Court that the powers which it exercises for
the purposes of delimitation are governed by the statute which has been
framed by Parliament under Article 327, namely, the Delimitation Act 2002.
46. Following upon the judgment in Virendra Pratap (supra), three
Ordinances were promulgated in order to create enabling provisions for the
1098 SUPREME COURT REPORTS [2023] 16 S.C.R.

Election Commission to undertake an exercise of updating the Delimitation
Orders in accordance with the additions/changes made to the Scheduled
Tribes Order subsequent to the 2001 census.
47. The statutory framework for the enactment of the 2006 Notiﬁcation
and the 2008 Order is as follows:
1. Under Section 4(2), the Delimitation Commission is required to
readjust the division of each state in territorial constituencies for
elections on the basis of the statutorily prescribed census;
2. Under Section 8, the Delimitation Commission has to determine,
having regard to the provisions of Articles 81, 170, 330 and 332,
the total number of seats to be assigned to the legislative assembly
of each state and determine on the basis of the prescribed census
ﬁgures, the number of seats to be reserved for SCs and STs of
the States;
3. Under Section 9, the Delimitation Commission has to distribute
the seats in the House of the People allocated to each state and
seats assigned to the Legislative Assemblies of the States based
on the 1971 census ﬁgures and delimit them in accordance with,
Articles 81, 170, 330 and 332 of the Constitution, as referred to
in Section 8;
For this, the Delimitation Commission is required to publish
its delimitation proposals in the Gazette of India and of the
States, specifying the date for its further consideration. It is then
required to consider objections and suggestions by way of public
sittings in the States as it thinks ﬁt and then ﬁnally determine
the delimitation of parliamentary constituencies and assembly
constituencies of each state.
4. This Order would then be published in the Gazettes and upon
publication, in accordance with Section 10(2) of the Act, “have
the force of law and shall not be called in question in any court”.
The readjustment and delimitation provided for in such an order
shall, in accordance with Section 10(4) of the Act, “apply 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
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relating to such representation and delimitation contained in any
other law for the time being in force or any order or notiﬁcation
issued under such law in so far as such representation and
delimitation are inconsistent with the provisions of this Act”; and
5. Section 4 (5) of the RP Act states that the extent of Parliamentary
constituencies shall be as provided by the Delimitation Orders
under the Act of 2002. However, there is an exception in favour
of the States of Arunachal Pradesh, Assam, Jharkhand, Manipur
and Nagaland. So, except the states mentioned in Sections 10A,
and 10B, the other states’ parliamentary constituencies and the
extents thereof will be determined by Orders passed under the
2002 Act. The 2006 Delimitation Notiﬁcation impugned herein
is one such Order in relation to the State of Sikkim.
48. The 2006 Delimitation Notiﬁcation was made in pursuance of the
powers under Sections 10, 9(2) and 4(2) of the Delimitation Act 2002. It
delimited constituencies for Parliamentary and Assembly elections in the
State of Sikkim. The total number of seats allocated in the House of the
People to the State was one and the total number of the seats assigned to the
Legislative Assembly was thirty two, out of which two were reserved for
SCs, twelve for Sikkimese of Bhutia Lepcha Origin and one for Sanghas.
The 2006 Notiﬁcation additionally speciﬁed the Constituencies and their
extent for the Legislative Assembly as well as for the Parliament.
Issues
• The Petitioners have suggested first, that the Delimitation
Commission must amend the 2006 Notiﬁcation to reserve seats
for Limboo and Tamangs under Article 332 and second, the
Election Commission must use the power under Section 9(1)(aa)
to amend the 2008 Order in accordance with the amendments
made to the 2006 Order by the Delimitation Commission;
• Alternatively, the petitioners have suggested that the Election
Commission use its powers under Section 11 and Section 9 of
the Delimitation Act and the RP Act respectively to correct both
the 2006 Order and the 2008 Order by reserving seats for the
Limboo Tamang STs in accordance with the formula stated in
Articles 330 and 332.
1100 SUPREME COURT REPORTS [2023] 16 S.C.R.

49. Accordingly, the issues that arise before us pertain to the scope of
the powers of the two bodies – the Delimitation Commission and the Election
Commission to make the above changes and the scope of this Court’s power
to make the above directions.
Analysis:
Whether Delimitation Commission can amend the 2006 Notiﬁcation
under the Delimitation Act
50. Article 82 of the Constitution 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”
51. Article 327 provides that “Subject to the provisions of this
Constitution, Parliament may from time to time by law make provision with
respect to all matters relating to, or in connection with, elections to either
House of Parliament or to the House or either House of the Legislature of the
State including the preparation of rolls, the delimitation of constituencies and
all other matters necessary for securing the due constitution of such Houses”.
52. The Delimitation Commission is a statutory body under the
Delimitation Act. The 2006 Delimitation Notiﬁcation is duly published
in the Gazette of India and of the States in the manner prescribed under
Sections 4, 8 and 10 of the Delimitation Act. In accordance with Section
10(2), the Order has the force of law, and cannot be called into question
before any court of law.
53. In Meghraj Kothari v. Delimitation Commission, rejecting the
argument that the Delimitation Act was passed under Article 82 and not
Article 327 and that the Act was thus exempt from the bar under Article
329, this Court has held that the Act was made under Article 327. Thus, even
though the notiﬁcation issued under Section 10 is not a statute, it has been
held to have the eﬀect of a law relating to the delimitation of constituencies
or allotment of seats under not only Section 10, but also under Article 327
of the Constitution.10

10 Meghraj Kothari vs Delimitation Commission and Ors, 1966 SCC OnLine SC 12
paras 10, 11.
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54. The delimitation of constituencies can only be objected to, and
the objections entertained by the Commission when they are made before
the Commission prior to the date speciﬁed by the Commission. Once the
Orders made under Sections 8 and 9 are published under Section 10, they
cannot be objected to. This Court has observed:
“20. 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.
21. 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.
…
33. In the instant case the provision of Section 10(4) of the Act puts
orders under Sections 8 and 9 as published under Section 10(1) in
the same street as a law made by Parliament itself which, as we have
already said, could only be done under Article 327, and consequently
the objection that the notiﬁcation was not to be treated as law cannot
be given eﬀect to.”
55. The 2006 Notiﬁcation, having the force of law under Article 327,
is protected also by virtue of Article 329 of the Constitution, which reads
as follows:
“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;”
1102 SUPREME COURT REPORTS [2023] 16 S.C.R.

56. Thus, in view of Article 329 of the Constitution, the Delimitation
Notiﬁcation of 2006 cannot be called into question. Any changes to the 2006
Notiﬁcation, could only have been made in accordance with the Delimitation
Act. The Act envisages changes/suggestions only until the publication of the
ﬁnal notiﬁcation, consequent to which, the notiﬁcation assumes the force
of law in supersession of any other law for the time being in force. In view
of Article 329, it is beyond the realm of judicial review.
57. The Delimitation Act only provides for changes prior to the ﬁnal
notiﬁcation. Once published, the Notiﬁcation cannot be amended even by
the Delimitation Commission under the 2002 Act.
The question is thus answered in the negative.

Whether the Election Commission can Amend the 2008 Order to
incorporate those changes
The Scope of powers of the Election Commission under Article
324 of the Constitution of India
58. Article 324 vests wide-ranging powers in the Election Commission.
The expressions “Superintendence, direction and control” as well as
“elections” have been interpreted widely to mean the entire process of
elections which comprises several stages.11The power under this Article,
though plenary, is not untrammeled, but is conditioned by the provisions
of the statutes governing the ﬁeld.12
59. In Mohinder Singh Gill v. The Chief Election Commissioner,13 a
Constitution Bench of this Court in the context of the Election Commission’s
power to order a re-poll and cancel a poll, clariﬁed that that while the
Commission has plenary powers under Article 324, this power is subject
to competent legislation enacted by Parliament under Article 327 of the
Constitution. The Election Commission cannot, the court held, act in a
manner that is contrary to the letter of the law and it is subject to scrutiny

11 Shambhu Prasad Sharma vs Charandar Mahant, 2023 11 SCC 390.
12 SS Dhanoa vs Union of India, AIR 1991 SC 1745
13 AIR 1978 SC 851.
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for its actions, notwithstanding the scope of its powers under Article 324.
This Court held as follows:
“Two limitations at least are laid on its plenary character in the exercise
thereof. Firstly, when Parliament or any State Legislature has made
valid law relating to or in connection with elections, the Commission,
shall act in conformity with, not in violation of, such provisions but
where such law is silent Article 324 is a reservoir of power to act for
the avowed purpose of, not divorced from, pushing forward a free and
fair election with expedition14”
60. The power of the Election Commission under Article 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 ﬁeld-
which include the Delimitation Act of 2002 and the RP Act 1950.
Scope of Powers of the Election Commission under RP Act.
61. Under Section 8 of the RP Act, the Election Commission is to
consolidate Orders made by the Delimitation Commission under Section 10
and under Sections 10-A and 10-B of the Delimitation Act. The 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.
62. Section 8(1), RP Act uses the words “having regard to all the orders
referred to in sub-section (5) of Section 4 and sub-section (3) of Section 7
relating to delimitation of parliamentary and assembly constituencies in all
States and Union Territories”. These provisions in turn, refer to the extent
of the constituencies as determined by the Delimitation Commission under
the Delimitation Act 2002. Once the extent is determined, the Election
Commission’s role under Section 8, is (i) to update the “description” of the
extent of the constituencies, without altering the extent and (ii) to consolidate
the orders into one order, under clauses (a) and (b) respectively. Neither of
these clauses pertains to incorporating provisions relating to the reservations
for newly designated Scheduled Tribes.

14 ibid para 92.
1104 SUPREME COURT REPORTS [2023] 16 S.C.R.

63. There is a duty to consolidate the Orders, as signiﬁed by the use
of “shall” in Section 8, but that duty speciﬁcally pertains to consolidation
of Orders made by the Delimitation Commission. Once consolidated in this
manner, which is what the Order of 2008does, Section 9, RP Act comes
into operation.
64. The marginal note to Section 9 is titled “Power of Election
Commission to maintain Delimitation Order up-to-date”. Unlike Section 8,
Section 9 uses phrase “may”. Further, Section 9(1)(aa), which the petitioners
have relied on, encompasses the power to :
“(aa) make such amendments in the Delimitation of Parliamentary and
Assembly Constituencies Order, 2008 as appear to it to be necessary
or expedient for consolidating with that Order any notiﬁcation or order
relating to delimitation of Parliamentary or assembly constituencies
(including reservation of seats for the Scheduled Castes or the
Scheduled Tribes in such constituencies) issued under Section 8-A of
this Act or any other Central Act”.
65. The provision uses the phrase “as appears to it to be necessary or
expedient”. The exercise of discretion arises when the authority in question
is satisﬁed of the necessity or expediency of its exercise. Justice GP Singh
in his book Interpretation of Statutes writes:
“Ordinarily, the words “May” and “it shall be lawful” are not words of
compulsion. They are enabling words and they only confer capacity,
power or authority and imply discretion. “They are both used in a
statute to indicate that something may be done which prior to it could
not be done”15
66. This Court has held that it is possible that a statute confers powers
on authorities, which are to be exercised at their discretion, and is couched
in permissive terms such as “it may be lawful” or “it may be permissible”.
However, in certain cases, the power, even though discretionary, is coupled
with a duty to act.

15 Justice GP Singh, Interpretation of Statutes, 15th Edition pg 365 para 5.6.11.
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67. The present provision implies that if the Election Commission
considers it necessary and expedient, it may consolidate with the 2008 Order
“any notiﬁcation or order relating to delimitation” of constituencies. The
Election Commission has the discretion to consolidate with the 2008 Order
any notiﬁcation or order that relates to delimitation, and not all orders and
notiﬁcations whatsoever. It is so to speak, not a general exercise of updating
the 2008 Order with any notiﬁcation or order that follows the 2008 Order.
The consolidation has to be done only with ﬁrst, such a notiﬁcation or order
that relates to delimitation of constituencies and second, issued under Section
8A of this Act or under any other Central Act.
68. Amending Act of 2002 which designates Limboo and Tamang
Scheduled Tribes is enacted under Articles 341 (2)16 and 342 (2)17 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 the
Article 366 of the Constitution.
69. Even if the discretion, as apparently vested in the Election
Commission to act is taken to be coupled with a duty to act, the duty arises
only when the conditions for its exercise are fulﬁlled18. For the Election
Commission to act, there must be an order that relates to delimitation and
such an order must have been issued under Section 8-A of this Act or under
a Central Act. Neither of these conditions is present as far as the Amending
Act of 2002 is concerned, to warrant the exercise of power under Section
9(1)(aa) of the RP Act.
70. 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.

16 (2) Parliament may by law include in or exclude from the list of Scheduled Castes
speciﬁed in a notiﬁcation issued under clause of any caste, race or tribe or part of or
group within_ any caste, race or tribe, but save as aforesaid a notiﬁcation issued under
the said clause shall not be varied by any subsequent notiﬁcation.
17 (2) Parliament may by law include in or exclude from the list of Scheduled Tribes
speciﬁed in a notiﬁcation issued under clause ( 1 ) any tribe or tribal community or part
of or group within any tribe or tribal community...”
18 Oﬃcial Liquidator vs Dharti Dhan, AIR 1977 SC 740.
1106 SUPREME COURT REPORTS [2023] 16 S.C.R.

Section 9, RP Act and Section 11, Delimitation Act
71. The petitioners have adverted to these provisions, as an alternative
route to incorporate the mandate of Articles 332 into the 2006 Notiﬁcation
and 2008 Order. They seek a mandamus against the Election Commission
generally in accordance with Article 332 for the Sikkim State Legislative
Assembly, on the strength of Section 9of the RP Act and Section 11of the
Delimitation Act.
72. Section 11 deals with the power of the Election Commission to
maintain delimitation orders up to date while Section 9 deals with the same
power speciﬁcally in respect of the Delimitation Order 2008. The salient
aspects of these provisions are:
• Both the Sections use the word “may” in delineating the power
of the Election Commission;
• Clause (a) of sub-section (1) of each of the provisions pertains
to correction of printing mistakes in the orders generally and in
the 2008 Order respectively, or any “error arising therein from
inadvertent slip or omission”; and
• Clause (b) of sub-section (1) deals with necessary amendments
on account of alteration in the boundaries or names.
73. We have already addressed Section 9(1)(aa). The only other
relevant clause for our purpose is clause (a) of sub-section (1) of Section
11of the Delimitation Act and Section 9 of the RP Act. Clause (a) deals
with – ﬁrst, correction of printing mistakes in orders or the 2008 order
respectively and second, correction of “any error arising therein from an
inadvertent slip or omission”.
74. The invocation of this clause can take place only if we were to
ﬁnd the non-inclusion of the Limboo Tamang Scheduled Tribes in the 2006
Notiﬁcation and 2008 Order as an “error” arising out of an inadvertent slip
or omission. However, the non-inclusion of these 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 ﬁgures
of the 2001 census alone and that the subsequent changes to the ST Order
have not been accordingly assimilated with the 2001 ﬁgures. Consequently,
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the delimitation exercise undertaken in 2006 could not account for the
Amending Act of 2002. This was the speciﬁc issue that the Court addressed
in Virendra Pratap (supra) by stating that the Election Commission may
obtain the relevant ﬁgures that were de hors the 2001 census.
75. Thus, the non-inclusion of the Limboo Tamang STs is not
attributable to a mere error arising out of an inadvertent slip or omission-
which are the only grounds under which the Orders can be altered by the
Delimitation Commission or the Election Commission.
76. The Explanation to Article 170 of the Constitution, which deals with
the composition of legislative assemblies prescribes that the “population”
means population as determined at the last preceding census of which ﬁgures
have been published. The proviso appended to it further states that the last
preceding census would mean the 2001 census, until the ﬁrst post-2026
census is carried out. Section 8 of the Delimitation Act, states that the power
to readjust the number of seats will be exercised having due regard inter
alia to Article 170. Further clauses (a) and (b) state that the Commission
shall determine the number of seats to be reserved in the House of People
as well as the Legislative Assemblies, in accordance with the census ﬁgures
of the 2001 census.
77. The Delimitation Commission, under Section 8, is supposed to
act according to the 2001 census in determining the number of seats to
be reserved. Their non-inclusion cannot be termed as an “error arising
out of an inadvertent slip” within the meaning of Section 9(1)(a) of the
RP Act.
78. The non-inclusion cannot also be termed as an “omission” either.
The principle of statutory interpretation, noscitur a sociis, states that the
meaning of a word is judged by the company it keeps19. The general term
“omission” in the above clauses derives its ﬂavour from the more speciﬁc
preceding phrase “inadvertent slip” and also, “printing mistakes” as speciﬁed
in the same clause. The term “omission” does not cover the situation of the
Scheduled Tribes designated as such after the 2001 census, and thereby
excluded from consideration in a subsequent delimitation exercise.

19 GP Singh (supra) pg 391 para 5.8.2.
1108 SUPREME COURT REPORTS [2023] 16 S.C.R.

79. Therefore, this non-inclusion arises due to a lack of an enabling
statutory provision which would accommodate post-census changes to
the delimitation exercise. The omission envisaged by Section 9 of the RP
Act and Section 11of the Delimitation Act refers to errors or omissions of
a ministerial nature. The entirety of the ambit of clause (a) is to allow the
Election Commission to correct printing mistakes and inadvertent slips or
omissions that result in error. This, evidently, would not extend to making
substantial modiﬁcations in the delimitation which has been made by the
Delimitation Commission in the exercise of its statutory power.
Proportional Representation
80. As regards the State of Sikkim, Section 7(1A) of the RP Act was
inserted by Act 8 of 1980 with eﬀect from 1 September 1979. Section 7(1A)
provides that out of a total of thirty two seats in the Legislative Assembly,
twelve seats are reserved for persons of a Sikkimese Bhutia-Lepcha origin
and one seat for the Sanghas referred to in Section 25A (apart from two
seats for the Scheduled Castes).
81. The provisions of sub-section (1A) of Section 7 need to be
contrasted with those of sub-sections (1B)20 and (1C) which provide for
reservation for the “Scheduled Tribes” in the States of Arunachal Pradesh,
Meghalaya, Mizoram, Nagaland and Tripura. The purpose of emphasizing
this distinction is that the reservation which is contemplated by clause (a)
of sub-section (1A) of Section 7 is in the character of the Bhutia-Lepcha as
a section. This is distinct from reservations for tribes.
82. Article 371F of the Constitution contains special provisions for the
State of Sikkim and begins with a non-obstante clause. Clause (f) empowers

20 (1-B) Notwithstanding anything contained in sub-section (1), in the Legislative
Assemblies of the States of Arunachal Pradesh, Meghalaya, Mizoram and Nagaland,
to be constituted at any time after the commencement of the Representation of the
People (Third Amendment) Act, 1987 (40 of 1987),— (a) [ﬁfty-nine seats] shall be
reserved for the Scheduled Tribes in the Legislative Assembly of the State of Arunachal
Pradesh;
[(1-C) Notwithstanding anything contained in sub-section (1), twenty seats shall be
reserved for the Scheduled Tribes in the Legislative Assembly of the State of Tripura to
be constituted at any time after the commencement of the Representation of the People
(Amendment) Act, 1992
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Parliament to make provision for the number of seats in the Legislative
Assembly which may be ﬁlled by candidates “belonging to such sections”
and for the delimitation of constituencies. Parliament is entrusted with this
enabling power “for the purpose of protecting the rights and interest of
diﬀerent sections of the population of Sikkim”.
83. Article 371F creates special provisions for setting apart seats in the
Legislative Assembly for such sections as Parliament may seek to legislate
upon. It was in exercise of the power under Article 371F(f) that Parliament
enacted the provision enabling the reservation of twelve seats for Sikkimese
of Bhutia-Lepcha origin under Section 7(1A) of the RP Act.
84. The validity of Section 7(1A) was challenged before this Court in
RC Poudyal (supra). Justice MN Venkatachaliah (as the learned Chief Justice
then was) delivered the judgment of the majority, in the Constitution Bench
and observed that the principle of proportionality speciﬁed in Article 332(3)
is a broad and general principle which is not intended to be arithmetically
precise. Article 332(3)(a) was, hence, together with Article 333, regarded
as illustrative of the broad principle of proportionality. The learned Judge
observed:
“126. 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. Articles 332(3-A) and 333 are illustrative instances. 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. Articles 371-A a special provision in respect of State of
Nagaland, 239-A and 240 illustrate the permissible areas and degrees
1110 SUPREME COURT REPORTS [2023] 16 S.C.R.

of departure. The systemic deﬁciencies in the plenitude of the doctrine
of full and eﬀective representation has not been understood in the
constitutional philosophy as derogating from the democratic principle.
Indeed, the argument in the case, in the perspective, is really one
of violation of the equality principle rather than of the democratic
principle. The inequalities in representation in the present case are an
inheritance and compulsion from the past. Historical considerations
have justiﬁed a diﬀerential treatment.”
85. The Court held that the special provision under Section 371F(f) is
based on historical considerations and compulsions peculiar to the State of
Sikkim and based on the conditions that led to the admission of the State
into the Union of India. The Court noted:
“128. From 1975 and onwards, when the impugned provisions came
to be enacted, Sikkim has been emerging from a political society and
monarchical system into the mainstream of a democratic way of life
and an industrial civilisation. The process and pace of this political
transformation is necessarily reliant on its institutions of the past. Mere
existence of a Constitution, by itself, does not ensure constitutionalism
or a constitutional culture. It is the political maturity and traditions of a
people that import meaning to a Constitution which otherwise merely
embodies political hopes and ideals. The provisions of clause (f) of
Article 371-F and the consequent changes in the electoral laws were
intended to recognise and accommodate the pace of the growth of the
political institutions of Sikkim and to make the transition gradual and
peaceful and to prevent dominance of one section of the population
over another on the basis of ethnic loyalties and identities. These
adjustments and accommodations reﬂect political expediencies for the
maintenance of social equilibrium. The political and social maturity
and economic development might in course of time enable the people
of Sikkim to transcend and submerge the ethnic apprehensions and
imbalances and might in future — one hopes sooner — usher in a more
egalitarian dispensation. Indeed, the impugned provisions, in their
very nature, contemplate and provide for a transitional phase in the
political evolution of Sikkim and are thereby essentially transitional
in character.”
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86. The Court upheld the provision on the ground that Parliament had
considered it necessary “in the admission of a strategic border State into
the Union”.
87. It was speciﬁcally argued in RC Poudyal that (i) Article 371F(f)
would require parity between all sections of the State’s population and not
only Bhutias and Lepchas and (ii) since the Bhutias and Lepchas, in addition
to being sections covered under Article 371F(f), are also Scheduled Tribes
and are governed by the formula stipulated under Article 332(3). Hence, it
was urged that they had to be treated at par with the other Scheduled Tribes
in the state and given only proportionate representation in accordance with
the formula prescribed under Article 332(3). To the extent that Section
7(1A) gave them greater representation than their proportion in the total
population of the state, it was argued, that it violated Article 14 and Articles
332 of the Constitution.
88. Rejecting the submission, the Court observed:
• First, Article 371F(f) is a “merely enabling” provision.
Consequently, as the Court noted, “if reservation is made by
Parliament for only one section, it must, by implication, be
construed to have exercised the power respecting the other
sections in a negational sense”. Hence, in the view of the
Court, the provision “enables the reservation conﬁned only to a
particular section”. The Court held thereby that Parliament could
not be directed to treat all sections of the state with parity; and
• Second, on whether Section 7(1A) violated the mandate of Article
332 (3) it was held that, the operational eﬀect of the non-obstante
clause of Article 371F(f) was that it allowed a departure from
Articles 330 and 332. This departure, it was held, was permissible
in view of the special considerations operating in the state of
Sikkim.
89. Thus, the following position emerges in view of the judgment in
RC Poudyal (supra)
(i) Article 371F which make special provisions with respect to the
State of Sikkim is a measure which was adopted bearing in mind
the historical circumstances pertaining to the admission of the
State as an integral part of the Union of India;
1112 SUPREME COURT REPORTS [2023] 16 S.C.R.

(ii) The antecedent historical circumstances leading to Article
371Fcould legitimately be borne in mind by Parliament in
designing a special measure for a certain section of the population
of Sikkim and while doing so, Parliament was not bound to treat
all the sections of the population alike;
(iii) Article 371F makes a departure from the principle embodied in
Article 332(3) which is evident from the non-obstante clause in
the former; and
(iv) The principle of proportionality itself is a broad and general
guiding principle that is adopted in Articles 330 and Article 332
but as a concept, it is not capable of application with arithmetic
precision or exactitude.
90. The petitioners argue that RC Poudyal (supra) upheld Article 371F
and thereby permitted a departure from the principle of proportionality
under Article 332(3) but not a departure from the principle of reservations
per se, under that provision. They argue that the principle of reservations
under Article 332(3) continues to apply and to the extent it is not applied
to Limboo Tamang Scheduled Tribes under Section 7(1A), the Section is
ultra vires Article 332.
91. The judgment in RC Poudyal (supra) contains the following
observations:
“133. Sri Jain contended that Bhutias and Lepchas had been declared
as Scheduled Tribes under the Constitution [Sikkim Scheduled Tribes]
Order, 1978 and that the extent of the reservation in their favour would
necessarily be governed by the provisions of Article 332(3) of the
Constitution which requires that the number of seats to be reserved shall
bear, as nearly as may be, the same proportion to the total number of
seats in the Assembly as the population of the Schedule Tribes in the
State bears to the total population of the State. But, in our opinion,
clause (f) of Article 371F is intended to enable, a departure from
Art. 332(3). This is the clear operational eﬀect of the non obstante
clause with which Article 371F opens
…
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181. This provision empowers Parliament to make provision
prescribing the number of seats in the Legislative Assembly in the
State of Sikkim which may be ﬁlled in by candidates belonging to the
diﬀerent sections of the population of Sikkim with a view to protect
the rights and interests of those sections. The non-obstante clause in
Article 371-F enables Parliament to make a departure from the
ratio contemplated by Article 332 (3) within the limitation which
is inherent in the power conferred by Article 371-F, i.e., not to alter
any of the basic features of the Constitution. It is, therefore, necessary
to examine whether in providing for reservation of twelve seats out
of thirty-two seats for Bhutias and Lepchas Parliament has acted in
disregard of the said limitation.”
92. The above paragraphs form parts of the separately authored
opinions of Justice Venkatachaliah and Justice Agarwal respectively. While
para 133 states that Article 371F permits a departure from Article 332 (2),
as a whole, para 181 implies that the departure is permissible only from the
ratio contemplated in Article 332(3), as opposed to the Article as a whole.
93. We believe that since Article 371F uses the non-obstante clause
in respect of “anything in the Constitution”, it would be anomalous to say
that the non-obstante clause in Article 371F only applies to a part of Article
332(3) which deals with proportionality and not to the whole provision,
including the very principle of reservations. However, we are not inclined
to ﬁnally decide on the speciﬁc contention of the petitioners, which requires
a detailed analysis of the interface between Article 371F on the one side
and Articles 332 on the other.
94. In any case,the ruling in RC Poudyal is unambiguous on the
aspect that proportionality is not capable of being applied with mathematical
precision. The principle of proportionality is to be borne in mind by the
Delimitation Commission and the Election Commission while acting in
discharge of their powers under the two legislations.
95. For instance, if the percentage of ST population is 3% of the total
state population and the state has 70 Assembly Seats, 3% of 70 seats would
be 2.1 or 2 seats (rounded oﬀ to the closest whole number). Now if three
seats are allocated for the STs instead of two,this would be considered
violative of the mandate of Article 332(3) since the reservation allowed
1114 SUPREME COURT REPORTS [2023] 16 S.C.R.

to the STs is greater than their percentage of total population in the state.
These were the facts of Anand Singh Kunwar v. Election Commission
of India where though the Election Commission later rectiﬁed this error,
a two-judge bench of this Court held that reserving 3 seats instead of 2 in
the Uttarakhand Legislative Assembly would have been contrary to the
paramount consideration of proportionality under Article 332(3).21 Notably,
provisions analogous to Article 371F that permit a departure from Article
332(3) do not exist for the State of Uttarakhand.
96. Section 8 of the Delimitation Commission Act, as we have observed
above, mandates that the exercise of the Delimitation Commission’s powers
in determining reserved seats be in accordance with the 2001 census. In this
the Commission must have due regard to the provisions of Articles 81, 170,
330 and 332 of the Constitution.
97. The 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. This
is precisely why the Ordinances promulgated after this Court’s directions
in Virendra Pratap (supra) created certain provisions expressly enabling
readjustment of seats by factoring in inclusions/exclusions to the Scheduled
Tribe lists.22 Such an enabling direction was made in the speciﬁc factual
context of that case in Virendra Pratap (supra), as we have noted above.
98. However, legislative eﬀorts in the form of the Ordinances and
Bills, did not eventually result 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. The Delimitation Act and the Representation
of the People Act, as they exist presently, do not create such a legislative

21 (2007) 7 SCC 234.
22 Preamble to the Readjustment of Representation of Scheduled Castes and Scheduled
Tribes in Parliamentary and Assembly Constituencies (Second) Ordinance 2013 –
“AN ORDINANCE to provide for the readjustment of seats in the House of the People
and in the Legislative Assemblies of the States and for the readjustment of territorial
. constituencies therefore, insofar as such readjustment is necessitated by inclusion in
or exclusion from the lists of the Scheduled Castes and the Scheduled Tribes and for
matters connected therewith or incidental thereto.”
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC 1115
AREAS v. UOI [DR. DHANANJAYA Y CHANDRACHUD, CJI]

framework. Absent a statutory duty, this Court is unable to issue a writ of
mandamus against the respondents.
99. This court has held in respect of the relief of mandamus, that:
“11. The writ of Mandamus is only granted to compel performance
of a public duty or to enforce private rights when duties of a public
nature, aﬀect public rights or when private rights are breached by or
in collusion with public oﬃcers.
12. The legal duty that may be enjoined by Mandamus can be one
imposed by the Constitution, a statute, any law or by rules or orders
having the force of law, which are capable of being judicially enforced.
13. The writ of Mandamus is liable to be refused when there is no
legal or constitutional obligation of the authority concerned, which is
capable of being enforced by Mandamus.23
100. For the Court to direct that in addition to the reservation which
has been made in Section 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. The Court unquestionably has the power to
determine in the exercise of judicial review as to whether a provision
made by Parliament is contrary to constitutional principle. But equally, this
Court would be going beyond the line that separates the legislative from
judicial domains by directing that reservation for the Scheduled Tribes over
and above what has been prescribed in Section 7(1A) should be made by
Parliament in a particular manner. This Court has held-
“Having due regard to the provisions of Articles 245 and 246 of the
Constitution, no such mandamus can be issued by this Court. Nor
can a direction be issued by this Court to the legislature of a State to
enact a law.”24
101. 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

23 Vivek Krishna vs Union of India, 2022 SCC OnLine SC 1040.
24 John Paily vs State of Kerala 2021 SCC OnLine SC 3405.
1116 SUPREME COURT REPORTS [2023] 16 S.C.R.

which have to be factored in by Parliament, at its discretion. The judgment
of the Constitution Bench in RC Poudyal clearly lays down the road map
for the manner in which the Court must approach such a vexed issue.
102. Mr K M Nataraj, Additional Solicitor General has sought to rely
on the provisions of Article 170 to contend that the Article would stand in
the way of any fresh exercise of delimitation being carried out.
103. The provisions of Article 170 indicate that until the census takes
place after 2026, the total number of seats in the Legislative Assembly
would be governed by the readjustment made on the basis of the 1971
census and the division of territorial constituencies would be governed by
the readjustment on the basis of the 2001 census. This has no bearing on
the exercise which is required to be conducted on the issue which is raised
in the present proceedings which essentially relates to the implementation
of the principle of representation for the Scheduled Tribes on the basis of
the population as indicated in the 2001 census.
104. The Additional Solicitor General sought to argue that the 2001
census may not give accurate ﬁgures since many of the communities that
were subsequently designated as Scheduled Tribes were part of the general
communities prior to the census. This is a matter for the Delimitation
Commission to determine. How the ﬁgures of population for a particular
Scheduled Tribes should be ascertained within the purview of the 2001
census is a matter for determination which the statutory body would be
empowered to carry out at the appropriate stage.
Conclusion
105. The delimitation of Parliamentary and Assembly Constituencies
Order 2008 forms the basis of the First and Second Schedules to the RP
Act. The Delimitation Commission completed its exercise almost ﬁfteen
years ago. Mr K M Nataraj, Additional Solicitor General submitted that
nearly ﬁfty-one communities were added after 2001 to the list of Scheduled
Tribes until the last census took place in 2011. This is a matter which must
engage the attention of the Union Government. The manner in which this
exercise would have to be determined within the purview of the Delimitation
Act 2002. But as we have already noted earlier, the exercise would require
legislative amendments, particularly having regard to the provisions of the
PUBLIC INTEREST COMMITTEE FOR SCHEDULING SPECIFIC 1117
AREAS v. UOI [DR. DHANANJAYA Y CHANDRACHUD, CJI]

First and Second Schedules to the RP Act. Directing a legislative amendment
is beyond the domain of judicial review.
106. In regard to the State of West Bengal, it has been submitted, by
the counsel appearing on behalf of the Election Commission that broadly
an additional seat would have to be made available in the State of West
Bengal for the Scheduled Tribes in order to accommodate the principle of
proportional representation. The above submission makes it abundantly clear
that it is for the Union Government to take recourse to the powers under
the Delimitation Act 2002 for the purpose of ensuring that the provisions
of Articles 330 and 332 are duly implemented. The Central Government
should take a decision with all reasonable dispatch, in accordance with law.
107. We, however, clarify that this judgment shall not be construed as
interfering with the election schedule that the Election Commission may
prescribe for the conduct of elections either to Parliament or to the State
Legislative Assemblies.
108. The Writ Petitions are disposed of in view of the above discussion.
109. Pending applications, if any, stand disposed of.

Headnotes prepared by: Writ petitions disposed.
Nidhi Jain

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