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(Shubhansh Thakur is a fourth year student of Symbiosis Law School, Noida. This is the first article in a two part article series.) In this two post series, the author shall argue against the constitutionality of the delimitation commission for the north eastern states (by making Assam as the base). In the first part, author shall establish that there was no legislative backing for the government to notify the commission and alter the Delimitation order. In the second part, author will go on to establish that the subjective satisfaction of the president which paved the way for the delimitation was indeed irrational and arbitrary. The world’s largest democracy is driven by the principle of ‘one person, one vote’. In order to effectuate this principle, it is necessary that every vote must carry the same weightage irrespective of the location of the voter. The equal weightage is crucial for electoral systems following proportional representation. In contrast to our ‘first past the post’ system’, the Constitution still envisages the principle of maintaining a uniform ratio between the population and number of seats that are available to each parliamentary constituency. Article talks about maintaining this ratio for the house of people (correspondingly Article 170 exists for state legislatures). Article 81 runs as:
“(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 million.] The article stipulates a two-fold exercise to maintain a uniform population-to-seat ratio. Firstly, there has to be an allotment of seats based on the population of the state. Secondly, those allotted seats to a state have to be further allocated/distributed to smaller parliamentary constituencies. The Supreme Court (SC) in the case of R.C. Poudayal v. Union of India has iterated that maintaining this ratio does not form the part of basic structure of Constitution and cannot be claimed with mathematical precision by voters in the Indian system. This is corroborated by the use of words “as far as practicable” indicating the directive nature of the article.The Parliament via Eighty Fourth Amendment has brought the process of seat distribution to a halt till 2026 while allowing the redrawing of boundaries of constituencies on the basis of 2001 census. The amendment was brought with the intention to boost the family planning measures. States that had successfully controlled the population would have got a reduced number of seats and the states which were not successful in controlling the population might have been politically benefited by increased number of seats. The amendment was thus aimed at keeping the states motivated for implementing the population control measures without any adverse impact on their seat allocation. This act or process of fixing limits or boundaries of territorial constituencies in a country or a province having a legislative body is referred to as delimitation. It is primarily aimed at ensuring uniformity in the voting impact. THE RECENT DELIMITATION COMMISSION In the recent turn of events, a Delimitation Commission (Commission) has been notified by the central government for Jammu and Kashmir (J&K) along with Assam, Manipur, Arunachal Pradesh and Nagaland. It is also clarified at the outset that J&K’s deferment was due to its special status and it can be seen in isolation to north eastern states as legally permissible. The four north-eastern states were left out in the previous delimitation exercise conducted in 2008. The notification has been red flagged by ex-legal adviser of Election Commission (EC) Mr. SK Mendiratta citing the fact that delimitation in these states felt within the exclusive domain of EC as per Section 8A of the Representation of People Act,1950 (RPA). In the course of the post, author will further dissect the raised concerns. BACKGROUND The Constitution via Article 327 requires the Parliament to regulate the exercise of delimitation by way of law so as to ensure the due constitution of the Houses. The Parliament has thus enacted the Delimitation Act, 2002 (Act) which empowers the government to notify the commission. There is a de facto dissolution of the commission after it publishes its Delimitation of Parliamentary & Assembly Constituencies Order (DPACO) specifying the delimitation of constituencies. This act is also supplemented by certain provisions of RPA which was brought in provisionally for the first general election after independence but it continues to acquire the field till date. The last commission was formed in the year 2003 but it left the four north eastern states due to practical difficulties in completing the exercise. Initially, the exercise was stayed by the order of the Hon’ble Gauhati High Court (HC) in the cases of Ram Prasad Sarmah v. Union of India (PIL 62/2007) for Assam, Manipur Pradesh Committee and Ors v Union of India (PIL 16/2007) for Manipur, Shri RikamTarehake v Union of India (PIL 54/2007) for Arunachal Pradesh and Chakesang Public Organisation and Ors. v Union of India (W.P. (C) No 67 of 2006) for Nagaland. The government thereafter by way of Delimitation (Amendment) Act, 2008 introduced Section 10A empowering the president by order to differ the exercise if “a situation has arisen whereby the unity and integrity of India is threatened or there is a serious threat to the peace and public order”. Despite the stay order by the Apex Court on the decision of HCs, the President exercised his power under Section 10A and issued a notification to defer the exercise of delimitation in Assam, Manipur , Arunachal Pradesh and Nagaland. Separate notifications were issued yet there were some similarities in the reasons which can be culled out as follows: 1. These states were already declared as ‘disturbed area’ under section 3 of the Armed Forces Special Powers Act (AFSPA). The exercise of delimitation further had the potential to disturb the integrity and sovereignty of India because certain organisations (declared as unlawful organisations) could have potentially aroused the sentiments of the people. 2. The constituencies in 1971 were drawn on the basis of the communities residing at a common place. The exercise of redrawing the boundaries would have posed threat to the cultural identity of the people as it would alter the boundaries which would subsequently cause alienation of different tribal groups. 3. In the notification with respect to Assam, it was provided that the 2001 census did not represent the true picture and delimitation on the basis of it would represent a distorted picture. It was also stated that the exercise of NRC in pursuance to the order of the SC was still under process. As per the notification in the official gazette dated 28 February 2020, the President has withdrawn the 2008 order deferring the exercise of delimitation in the four states. The central government has further notified the commission headed by Justice (Retd.) Ranjana Pathak to conduct the delimitation exercise in the four states along with J&K. I propose to argue that there was in fact no law to recreate the commission for these states, which is a sine qua non under Article 82 of the Constitution of India. The constitution bars judicial review of law in the matter of elections including delimitation under Article 329. The legislature has also made it clear through section 8 and 9 of the Delimitation Act that once the orders are published by the commission, it shall be treated as law under Article 329 and cannot be questioned in the court of law. This has been upheld in the five-judge bench judgement of Meghraj Kothari v Delimitation Commission on the basis that if judicial review is allowed in such matters, it would allow the voters to use this as a tool to defer the elections in their respective constituencies for a prolonged period. In view of this, the issues become a crucial one and the commission must be formed within the four prongs of law. ABSENCE OF LEGISLATIVE BACKING Article 82 of the Constitution mandates the division of territorial constituencies “after each census for the House of People by such authority and in such a manner as the Parliament may by law determine”. The Parliament is thus empowered via Section 3 of the Act to “notify a commission as soon as possible after the commencement of Act”. It is a trite that every Commission is preceded with a Delimitation Commission Act as it happened in the year 1962 followed by 1971 and finally in 2002. This fact coupled with the literal interpretation of Section 3 which uses the word like “a” along with“as soon as possible after the commencement of the Act” provides a strong inference for the formation of a single Delimitation Commission under the Act and the subsequent formation of another Delimitation Commission would require another legislative backing (the authority of Commission for J&K flows from J&K Reorganisation Act, 2019’s section 62 specifically allows the formation of delimitation commission), which is absent in the present case. This has happened for the first time that a subsequent commission has been formed for conducting delimitation in certain leftover states. As indicated previously, the last commission was dissolved after its publication of DPACO, 2008. It is essential to point out that the DPACO, 2008 specified the constituencies of north eastern states as per the last delimitation order of 1976 and it is author’s view that the 2008 order will continue to govern the field until the next delimitation is conducted after 2026.This is because there is no law which permits the alteration of DPACO, 2008 for the north eastern states unlike the J&K Reorganisation Act, 2019 which allows for the alteration of the last DPACO through section 11 (“On and from the appointed day, the Delimitation of Parliamentary Constituencies Order, 1976 shall stand amended”).In crux, the author argues that there is no law or authority to alter the DPACO of 2008 in the current legislative setup by subsequent commission. Assuming arguendo that the commission does not get dissolved (due to absence of express statutory provision, that‘s why dissolution is de facto) then the same commission as was previously notified should finish the leftover task for the north-eastern states. The author argues that one single commission can be formed and the same commission can alter DPACO. Apart from the commission, only EC has the authority to alter the DPACO by way of section 9(aa) which runs as: “(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 8A of this Act or any other Central Act;” The necessity of law to notify the commission flows from Article 82 and there is no such law which permits the alteration of DPACO, 2008 by subsequent commission. Along with this, there is an implied fetter on the powers of the government under Section 8A (4) of the RPA, which reads as: (2) As soon as may be after the deferment order in respect of a State is rescinded under subsection (1), the Election Commission may, by order, determine-- (a) the parliamentary constituencies into which such State to which more than one seat is allotted in the First Schedule shall be divided; (b) the extent of each constituency... This makes it clear that the notification permitting the subsequent formation of Commission is devoid of any authority. The government has no legislative backing to notify the subsequent commission and the delimitation in these north eastern states is a task vested with the EC and as a corollary to this, it has been empowered to alter the DPACO. The EC is a constitutional authority devoid of executive control and the executive interference in the working of such constitutional authorities is fatal to the Indian democratic system especially in such matters where the system of checks and balances in the form of judicial review is limited. The commission thus has no existence in the eyes of law with reference to the north eastern states and must be set aside. The delimitation of the parliamentary constituencies in the concerned states would continue to be governed by the DPACO, 2008 unless there is any legislative authority permitting the formation of commission. In Part II, we’ll look at the conditions that were said to be prevalent in the north eastern states making the environment conducive for conducting delimitation, did not really exist. Through this, author would argue that the president by lifting the order of deferment has exercised his subjective satisfaction arbitrarily or irrationally. There were indeed no facts which would warrant the presidential interference.
2 Comments
Devyanshu Sharma
30/8/2020 08:52:15 pm
It is a very nicely structured article. The author has covered the topic brilliantly. All the best Mr. Thakur
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Aditya Raj
31/8/2020 01:18:12 am
A very well deducted and logical argument. Special kudos for the topic chosen and shed light upon.
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