(Shubham Kashyap Kalita is a third year student of National Law University and Judicial Academy, Assam. This is part 1 of a two part series.)
Featured art: ‘City Limits’ by Philip Guston
1. Introduction
India is one of the largest democracies in the world and has adopted the principle of “one person, one vote, one value” to thrive for political equality. This principle is embedded in the Constitution which constitutes the basic structure and endorses political rights to individuals. The process of delimitation emanates from this guiding principle of “one man, one vote, and one value”. The process of delimitation is the fixing or arranging of boundaries of territories or constituencies for the legislative or parliamentary election. It is done with the objective of providing equal representation to equal segments of a population. The territorial constituency of each state is divided in such a 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. The geographical boundaries are arranged to ensure a fair division of areas and to prevent any sort of advantage to any particular political party in an election.[i]
1.1. Delimitation under the Constitution:
Article 81 of the Constitution provides for the delimitation of territorial constituencies for allotment of seats to the House of the People. Article 82 mandates the process of delimitation after each census and upon the completion of each Census. It tasks the Parliament with establishing an authority that will carry out the process of delimitation. Article 170 (2) provides the basis for delimitation of territorial constituencies of a state and the allocation of seats as per the population size as ascertained in the last preceding census of which the relevant figures have been published. Further, Clause (3) mandates the requirement of establishing an authority for carrying out the delimitation of territorial constituencies of a state after each census. India has gone through the process of delimitation four times since independence i.e., in 1952 under the Delimitation Commission Act 1952; in 1963 under the Delimitation Commission Act 1962; in 1973 under the Delimitation Commission Act 1972 and in 2002 under the Delimitation Commission Act 2002. In light of the 42nd Amendment 1976, there was a freeze on the number of seats for Lok Sabha as well as for the state assemblies and no delimitation exercise was carried out after the publication of 1981 and 1991 census figures. The Fourth Delimitation Commission’s work was halted too for some time owing to the controversy made by the provision mandating 1991 as the basis to carry out the process of delimitation. It was contested that the latest census figure i.e., of 2001 should be used instead of the older one. Owing to this, the 87th Amendment Act 2003 was passed by the parliament which made the 2001 census figure as the basis year to carry out the delimitation exercise. In the 2009 General Elections, re-drawn electoral constituencies based on the 2001 census were in play, following the recommendations of the Delimitation Commission of India whose recommendations were approved in February 2008.
1.2. Delimitation Commission:
Section 3 of the Delimitation Commission Act 2002 provides the composition of the Commission which includes three members i.e., (1) a sitting or retired Judge of the Supreme Court who shall be the Chairperson of the Commission; (2) the Chief Election Commissioner or Election Commissioner nominated by the Chief Election Commissioner as an ex-officio member; (3) the State Election Commissioner of the concerned state. Section 4 entitles the commission to ascertain the boundaries of constituencies of a state or the territory of a state for the purpose of election to the House of the People and the state legislative assemblies. It is also entitled to determine the seats that are reserved for scheduled castes and scheduled tribes wherever the proportion of their population is relatively large. Clause (4) of Section 7 states that in case of difference of opinions among the members of the Commission, the opinion of the majority shall prevail. The commission has been bestowed with the powers of the civil court under section 345 and 346 of the Code of Criminal Procedure 1973. Also, the order passed by the Commission is not amenable to judicial review under as per Article 329(1).[ii]
2. The Process of Delimitation in Assam: A Legal Conundrum
In 2009 General Elections, out of 543 constituencies to Lok Sabha, 499 constituencies were newly delimited except in the states of Jammu & Kashmir, Arunachal Pradesh, Jharkhand, Assam, Manipur, and Nagaland. Now, the central government on February 28 2020 has notified that the delimitation process will be carried out in the four north-eastern states along with Jammu & Kashmir rescinding the 2008 notification which deferred the process until further orders. This posed a serious question as to why the process of delimitation is happening now when the process of National Register of Citizens (NRC) is still not completed and there are apprehensions over the recent Citizenship Amendment Act (CAA) passed by the central government.[iii] The whole process of NRC has been called into question when certain flaws were revealed as to the people who have been excluded from the list. The final draft of the NRC which was published excluded 19,06,657 people out of 3,30,37,661 applicants. It was feared that many people have been excluded due to their lack of documentation and many illegal migrants have been included through forged documents or other illegal means. The state government has itself admitted the flaw and has apprised the Supreme Court of re-evaluation of the same in certain districts. Many people that have approached the tribunals to challenge their exclusion from the list are yet to be heard by the respective tribunals. The identity cards are yet to be issued by the government for those who have been included in the list. The electoral rolls are not updated according to the published data of NRC. It is still uncertain about the ‘indigenous’ population of the region and in such circumstances, if delimitation is carried out many people would be deprived of their political rights and political parties might gain undue advantage of the situation. Therefore, it is not wise to conduct delimitation till the process of NRC is completed.
Further, the introduction of CAA has seen widespread protest in the North-East and other parts of the country as well. The CAA tends to provide legal citizenry to the illegal migrants through the Act which will lead to the loss of political, cultural and land rights of the indigenous population. Therefore, without ascertaining the indigenous population and without ensuring the protection of their political rights, the process of delimitation would be detrimental to the interest of the people of Assam.
2.1. Reasons Behind Deferment in 2008
An outrage arose in the north-eastern states of Arunachal Pradesh, Assam, Manipur, and Nagaland with regard to the process of delimitation back then. There were serious apprehensions that the process of delimitation based on the 2001 census would be devastating for the people of Assam as a large number of illegal immigrants had been covered by the 2001 census. Owing to such fears, various state and local organizations had collectively protested against the 2002-08 process of delimitation based on the 2001 census and challenged it before the Gauhati High Court which stayed the delimitation process.[iv] The Hon’ble Court observed that-
“Insofar as the State of Assam is concerned, the main grievance of the petitioners appears to be identification of what is contended, on a definite basis in view of the judgment of the Supreme Court in Sarbananda Sonowal’s case reported in (2005) 5 SCC 665, to be a large number of illegal migrants who have been covered by the census report of the year 2001. The aforesaid question is inextricably linked to the process of delimitation of the territorial boundaries of the constituencies as a whole with the ultimate result that such illegal migrants in the State may not be permitted to participate in the electoral process. The submissions made by the learned counsels for the parties are capable of raising hypothetical questions of exclusion of a large number of a segment of the population constituting the State Assembly from the electoral process. Permitting such illegal migrants to participate in the electoral process of the country would be contrary to the letter and spirit of the Constitution and the laws therefore, the exercise of delimitation process which is carried on the basis of the data published by the Census Commission without first determining the citizenship in question would be inconsistent with the constitutional rights of the citizens.”
An all-party delegation from Assam had approached the Home Ministry and pleaded that the delimitation process should be called off as the NRC was yet to be updated. With the growing concern, an amendment was brought about in 2008 and a Presidential Order was issued on February 8, 2008, deferring the process of delimitation.[v]
2.2. A Relook at Government’s Decision
On February 28, 2020, the President of India cleared the road to carry out the process of delimitation by quashing the February 8, 2008 Presidential Order. A fresh order has been issued by the Ministry of Law and Justice stating that the circumstances which compelled the government to defer the process of delimitation in 2008 have ceased to exist and the same can be carried out peacefully as mandated by Delimitation Act 2002. On March 6, the Ministry of Law and Justice notified the Delimitation Commission to carry out the process of delimitation in the state of Assam, Arunachal Pradesh, Manipur, Nagaland, and Jammu & Kashmir.[vi]
The issue pertaining to the current delimitation process is that the process will be carried out in accordance with the data published in 2001 census which had reported a major demographic change in the electoral outcomes as the Muslim population constituted 30.2 % of the state’s total population, forming a majority in over seven districts out of the total twenty-seven districts. In 1991, the census reported a 3.87% increase in Muslim population as Muslims were 28.43% of Assam’s total population as compared to 24.56% in 1971. The NRC was introduced to identify this influx of illegal migrants in the indigenous population which has posed a great threat to the culture and identity of the Assamese people. It has been claimed that the process of delimitation is illegal and is a violation of the law as the NRC process is yet to be completed. The argument essentially is that delimitation can only be conducted after a NRC for Assam is finalized.[vii]
The government’s decision to carry out the process of delimitation at this juncture raised many pertinent questions as to its impact on the number of seats in Assam; it’s socio-political impact on the indigenous population and the legality of the process. Nevertheless, the author shall discuss the issues at great length in the next part.
[i] 41, A.K. Verma, Delimitation in India: Methodological Issues, Economic and Political Weekly, 2006, p. 794–799, JSTOR, www.jstor.org/stable/4417903 (Last visited 15th July 2020).
[ii] See Meghraj Kothari v. Delimitation Commission & Ors. , 1967 AIR 669.
[iii]Everything you want to know about Constitutional Delimitation, PRATIDIN TIME, https://www.pratidintime.com/everything-you-want-to-know-about-constituency-delimitation/ (Last visited 16th July 2020).
[iv]Shri. Ram Prasad Sarmah v. UOI (PIL No. 62/2007).
[v]Supreme Court sends a notice on a plea challenging delimitation exercise in Assam, THE LEAFLET, https://theleaflet.in/supreme-court-sends-notice-to-centre-on-a-plea-challenging-delimitation-exercise-in-assam. (Last visited 18th July 2020).
[vi] Government of India, Ministry of Law and Justice, F. No. H-11019/3/2019-Leg.II (March 6th, 2020), available at http://egazette.nic.in/WriteReadData/2020/216583.pdf.
[vii] Gaurav Das, Assam’s Proposed Delimitation is ‘untimely’, say activist and opposition, THE WIRE, https://thewire.in/politics/assam-delimitation-nrc-untimely-activists-opposition.(Last visited 19th July 2020).
Leave a Reply