A Test of Judicial Propriety of Article 329 – The RMLNLU Law Review Blog

By: S.V. Ghopesh

PANCHAYATI ECLECTICISM

Dr. Chintan Chandrachud characterised “Panchayati Eclecticism” in 2016 as a results-oriented phase of philosophy in the Indian judiciary’s constitutional interpretation. He argued that the Court often reasoned backwards from a pre-determined conclusion rather than reasoning to reach it. This, he explained, stemmed from two key factors:

1. Smaller benches deciding substantial constitutional questions despite the mandate of Article 145(3).
2. The Court shaping its reasoning based on its perceived role rather than a neutral approach to legal principles, whether that be as a guardian of the Constitution, protector of the free market, etc.

He argued that the main tenets of Panchayati Eclecticism include small benches deciding significant cases, minimal emphasis on reason-giving, jurisprudential inconsistencies, and diverse interpretive techniques, often shaped by the Court’s self-conception of its role. It is concerning that this phase of constitutional interpretation still persists in some judgements. This research article will attempt to expound on the theory of Panchayati Eclecticism in contemporary times and explore how the judiciary remains influenced by Panchayati Eclecticism even as the year 2025 approaches.

THE DICHOTOMY IN ARTICLE 329’S INTERPRETATION

The dichotomy between Public Interest Committee for Scheduling Specific Areas v. Union Of India Ministry Of Home Affairs (PICSSA) and Kishore Chhanganlal Rathod v. UOI sharply reflects Panchayati Eclecticism. Both recent cases address whether judicial review may be exercised over delimitation laws, given the bar under Article 329 of the Constitution, part of the IX Schedule.

In the former case, the Court examined its authority to direct amendments to delimitation orders issued by the Delimitation Committee and observed: “Thus, in view of Article 329 of the Constitution, the Delimitation Notification of 2006 cannot be called into question” (¶56). The Court here undertook a simple, textualist approach in interpreting Article 329.

In the latter case, decided just months later, the Court took a drastic turn, moving away from the textualist approach to hold that Article 329 did not bar judicial review. In its brief six-page judgement, the Court acknowledged the restriction imposed by Article 329 but concluded that this alone could not justify an absolute bar, reasoning:

“If judicial intervention is deemed completely barred, citizens would not have any forum to plead their grievances, leaving them solely at the mercy of the Delimitation Commission. As a constitutional court and guardian of public interest, permitting such a scenario would be contrary to the Court’s duties and the principle of separation of powers” (¶5).

The judgement strongly fulfils both key factors of Panchayati Eclecticism: first, the Kishore Rathod judgement was delivered by a two-judge bench; second, the restriction of Article 329’s scope clearly reflects how the Court has taken a side, perceiving itself as the guardian of public interest. This is further corroborated by the fact that the above reasoning forms the sole ratio for restricting Article 329’s scope, whereas other reasonings merely supplement the above and refute contrary precedents without substantiating why the restriction on Article 329 is not absolute.

The judgement relied on Dravida Munnetra Kazhagam v. State of T.N. (DMK), wherein it held that a Constitutional Court could intervene in delimitation matters falling under Articles 243-O and 243-ZG, which mirror Article 329. It further relied on State of Goa v. Fouziya Imtiaz Shaikh, a larger bench decision affirming DMK. However, in the opinion of this author, this reasoning is fallacious at best and erroneous at worst.

To break it down, the Court supported its reasoning to intervene in matters under Article 329 by relying on a case that dealt with a mirror provision, not Article 329 itself. It then sought to bolster this reasoning by citing a larger bench judgement affirming the earlier case law. This approach is fundamentally flawed, as the Court overlooked PICSSA, an earlier judgement by a larger bench than Kishore Rathod that directly addressed Article 329. The binding authority was PICSSA, not the other judgements.

The respondents in this case relied on the seven-judge bench decision in Meghraj Kothari v. Delimitation Commission and Others to support their contention that judicial intervention is fully prohibited. The Court refuted this argument by holding that Meghraj Kothari merely established that judicial intervention should not be exercised when it would unnecessarily delay the election process, not that Article 329 imposes a blanket restriction (¶8). This demonstrates that the smaller bench was not willing to abide by an earlier decision by a larger bench in pursuit of its self-conceived role—another facet of Panchayati Eclecticism.

What is evident here is that the Court rejected a contrary contention that arose before it. However, the issue arises as to whether this should have been the case, given that in PICSSA, it was explicitly stated that Article 329 does impose an absolute restriction on judicial review concerning delimitation laws. In the opinion of this author, this complete overlooking of PICSSA is deeply flawed for incurring per incuriam.

It is a well-established principle in law that “the quotable in law is avoided and ignored if it is rendered in ignoratium of a statute or other binding authority.” The essence of binding authority is not that every direction of a court is binding, but rather that the principles of law are binding. In PICSSA, what was formulated was not a direction but a principle of law, where the Court undertook a positivist approach to affirm the validity of the absolute restriction on judicial review enshrined in Article 329.

The binding authority on Kishore Rathod, therefore, is PICSSA and not the other cases discussed in the judgement. Ignoring this binding authority seems to be a straightforward case of judicial inconsistency, even if per incuriam may not be attracted. This demonstrates Dr. Chandrachud’s observation that smaller benches are prone to being less well-informed. What this judicial inconsistency does is create a dichotomy where there are two recent Supreme Court judgements with opposing interpretations of Article 329.

JUDICIAL INCONSISTENCIES: A CASE STUDY OF SMALLER VS. LARGER BENCHES

The judgement in Kishore Rathod should not merely be viewed as creating a dichotomy in interpreting Article 329 but also as highlighting differences in attitudes towards judicial propriety between a smaller and a larger bench.

In Kishore Rathod, a two-judge bench of the Supreme Court departed from its earlier decision in PICSSA, leading to two conflicting views on Article 329. This departure results in two critical consequences: first, a disregard for judicial propriety, and second, the creation of an ambiguous position on a constitutional provision. These consequences stand in contrast to another recent decision of the Court, Anoop Baranwal v. UOI.

In Anoop Baranwal, the Court unanimously held the right to vote as a constitutional right deriving from Article 326. However, an earlier co-ordinate bench in Kuldip Nayar v. UOI had held the right to vote to be a purely statutory right under Section 62 of the Representation of the People Act, 1951. In Anoop Baranwal, the Court, while lacking the authority to outright overturn Kuldip Nayar, adhered to judicial propriety by overruling it within the bounds of validity and reconciling the right to vote as both constitutional and statutory. Yet, this judgement also left questions unanswered, such as whether the right to vote was subject to statutory or constitutional limitations.

When contrasting these cases, two significant effects emerge. In Anoop Baranwal, the Court adhered to judicial propriety despite holding a differing opinion, avoiding conflicting positions. In Kishore Rathod, however, the smaller bench prioritised presenting its interpretation, creating a stark dichotomy. Ultimately, however, there is no clear clarity on the position of law dealt with in these matters in both cases.

Viewed through the lens of Panchayati Eclecticism, the larger bench in Anoop Baranwal chose to maintain judicial propriety, even if it meant presenting an unclear stance to avoid creating conflicting positions. On the other hand, the smaller bench in Kishore Rathod prioritised its interpretation, resulting in starkly diverging views. Ultimately, both cases led to ambiguous legal outcomes.

CONCLUSION

In the personal opinion of this author, Article 329 should not be construed in a manner that places it entirely beyond judicial purview, as such an interpretation permits the possibility of gerrymandering and other manipulative exercises aimed at consolidating power in favour of the government, regardless of its political identity. However, the ultimate issue here lies in the manner in which Kishore Rathod achieved this outcome.

A comparison between PICSSA and Kishore Rathod reflects three things:

1. Firstly, both Courts adopted completely different interpretations of Article 329.
2. Secondly, such variance led to both judgements giving antithetical views on whether there is an absolute bar imposed on judicial scrutiny.
3. Thirdly, the smaller court in Kishore Rathod, seemingly unaware of the earlier binding judgement, overlooked it, contributing to legal ambiguity and judicial inconsistency.

A further comparison of Kishore Rathod with Anoop Baranwal shows how a larger bench adhered to binding authorities, contrasting with the smaller bench, which neither followed nor remained informed of binding precedents. While both cases resulted in unclear legal positions, the processes leading to these outcomes highlight key differences in the approaches taken here.

(S.V. Ghopesh is a law graduate from Tamil Nadu National Law University, Tiruchirapalli. The author may be contacted via mail at ghopesh_ug23@tnnlu.ac.in)