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(Shubhansh Thakur is a fourth year student of Symbiosis Law School, Noida. This is the second article in a two part article series.) In part I, the author argued for the unconstitutionality of the notification allowing the formation of a delimitation commission. It was argued that there was indeed no law by which the central government could notify the subsequent delimitation commission for the north eastern states. Apart from this, there was no law which would allow the alteration of DPACO, 2008. The notification was thus an example of executive interference into the tasks entrusted to the Election commission. In this post, the author shall argue that the circumstances which led the president to lift the order of deferment issued in 2008, was nothing but an arbitrary exercise of power under the garb of subjective satisfaction. ARBITRARY EXERCISE OF EXECUTIVE POWER The president is empowered under Section 8A(1) of the Representation of People Act,1950 (RPA) to rescind the order of deferment with respect to delimitation, “if he is satisfied”. This means the power vested in the president is dependent upon his subjective satisfaction. The aspect of subjective satisfaction brings with it limited standards of Judicial Review (JR). The judgement of S.R. Bommai v. UOI had interpreted the term ‘satisfied’ in terms of Article 356 in following words: Hence, it is not the personal whim, wish, view or opinion or the ipse dixit of the President dehors the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose. In other words, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen.
The analysis of the term arose out of literal interpretation and can be applied to the limited extent of understanding the term satisfied under Section 8A of RPA. As per the considered opinion of the author, the rationale for the quoted part is that arbitrariness cannot be allowed to perpetrate in disguise of subjective satisfaction as it will defy the objective behind Article 14. Justice D.Y. Chandrachud has added another feather to the cap of Article 14 in the case of Secretary, Ministry of Defence v. Babita Punia (here) where he stated in context to the principle of differentiation that Article 14 includes right to rationality. When the court rules out arbitrary decisions, as a corollary, the right to rational decision is vested. This right to rationality has afforded yet another judicial recognition to Wednesbury's principle of unreasonableness. A decision is unreasonable when it is so unreasonable that no reasonable person acting reasonably could have made it. Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service has equated unreasonableness with irrationality in following words: ‘By “irrationality” I mean what can now be succinctly referred to as “Wednesbury unreasonableness”. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. (Internal citation omitted) Over the years, SC has expanded the scope of irrationality to be suited for the Indian legal system. In Tata Cellular v. Union of India, the SC explained and expanded irrationality in the following words: It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. (underlining is mine) This decision provides a yardstick to assess the subjective satisfaction. The subjective satisfaction would be irrational or unreasonable (as one may prefer to term it), if the facts in existence do not warrant the impugned course of action. The author through this would argue that there has been no material change in the circumstances warranting the action of the president to lift the order of deferment. The situation remains the same as it was in 2008, when the president differed the exercise. Before adverting to the analysis of the change in facts, it is pertinent to reproduce the rationale of presidential order permitting delimitation (the orders of the different states were different yet similar in content but the author would argue with respect to Assam as its basis because it is beyond the scope of the article to argue individually): “And whereas there is a significant improvement in the security situation in the State of Assam. There is also reduction in insurgency incidents and improvement in law and order of these States making the situation conducive for carrying out the delimitation exercise which was deferred in the State in the year 2008. Therefore, it appears that the circumstances that led to the deferring of the delimitation exercise in the State of Assam have ceased to exist and that the delimitation of the constituencies as envisaged under the Delimitation Act, 2002 could be carried out now.” The facts stated appear to be contrary to the real nature of things in Assam. The author submits that there is no material change which makes the situation conducive for conducting delimitation. The state is still declared as disturbed area in terms of AFSPA which is enough to prove that the issue of peace and order still persists. The 2001 census does not represent the true population as there was an increase in the incidents of insurgency which prompted the SC to conduct the NRC with a fixed timeline in the case of Assam Sanmilita Mahasanga v. Union of India. It is also acknowledged by the SC that these insurgents thereafter travel to the neighbouring sister states. This shows that the inclusion of insurgents affects the north eastern states as a whole. Though the list for NRC in Assam has been published yet the fate of around 19 lakh people excluded from it is still undecided. It is reported that there is an reduction in insurgency operations but the 2001 census in no way affects the reduction in insurgents as the population figures of 2001, which will form the basis of delimitation still consists of insurgents. Another reason for deferring the exercise(indicated in part I) was the threat to cultural groups as delimitation would cause alienation of the similarly situated tribal groups. It is interesting to note how these cultural groups would now agree for delimitation when they resisted it previously on the ground of causing disturbance to their population accumulation in a specific area. The delimitation if conducted in 2020 would still alienate the similarly situated tribal groups. This threat exists today as well. Delimitation at the cost of causing threat to the cultural identity of tribal people would be a violation of a greater promise made through Assam Accord. It may also be argued that the section 8A(5)(d) of RPA provides for public consultation before finalising the delimitation. Due to imposition of AFSPA, this public consultation would not be carried out in the spirit. Through the Assam Accord, India agreed to preserve the socio cultural identity of the people in Assam and breaking their tribal groups into different constituencies will cause a threat to socio cultural identity which will vitiate the promises made at the time of signing the accord. Apart from this, the fact of including insurgents through the basis of 2001 census would also violate the accord which promised practical steps on behalf of India to delete and expel the foreigner into the territory of Assam. The delimitation on the basis of 2001 census rather proposes a mechanism to include foreigners as a basis for redrawing the boundaries. These reasons indicated in the order form the basis of subjective satisfaction of the president. The facts in no way warrant the exercise of power by the president. The order issued by the president would be covered under the definition of law stated in Article 13 and can be tested on the anvil of Part III. The author thus submits that the exercise of power by the president is irrational and must be ruled out on the touchstone of Article 14 as irrational. The facts seem to be cooked up rather than existential and the facts do not in the farthest possibility makes the environment conducive for delimitation. This exercise of power also seems to be motivated by some extraneous considerations as the government thereafter by order encroached into the domain of the EC. Thus, to avoid executive supremacy and to establish a balanced power model, this notification is required to be ruled out. CONCLUDING REMARKS The situation in the north eastern states is unique and this is evident from the frequent use of AFSPA for the curtailment of civil liberties. The SC has time and again reminded the authorities of the insurgent incidences in the north eastern states especially in Assam. It will be fraud on the Assam Accord if the census which includes the insurgents is made the basis for conducting delimitation. This would also violate the principle of constitutional morality which mandates the following of constitutional mandate in the letter and spirit. The spirit requires the delimitation on the figures which represent the Indian population and this is not possible on the basis of 2001 figures. The issue of the north eastern states with reference to the delimitation as per the author’s view has to be addressed via a constitutional amendment. The constitutional amendment should allow the NRC figures to be the basis of delimitation in Assam apart from empowering the EC to form the basis of census year as it may deem fit in isolation to what has been provided for the other states. This is also required in view of the recent Citizenship Amendment Act, 2019 which will further complicate the calculation of true population. The SC has acknowledged (¶39) in the case of Sarbnanda Sonowal (I) v. Union of India that the exponential growth of population in Assam is due to the increasing number of insurgents which is yet to be rectified. In view of these facts, the decision to conduct delimitation in the four north eastern states seems to be hasty and politically motivated. The exercise if allowed would set a wrong model of executive supremacy which may exercise power at its whims devoid of law. (The author is grateful to Advocate Ibad Mushtaq for his valuable comments.)
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