(Shubham Kashyap Kalita is a third year student of National Law University and Judicial Academy, Assam. This is part 2 of a two part series.)
Featured art: ‘Village Boundary’ by Adam Baltatu
The process of delimitation is a constitutional process which must be carried out keeping the constitutional ideals at the forefront. We have seen that the reason for which the delimitation process was deferred in 2008 is still in existence and carrying out the process without considering the prevailing situations can jeopardize the interest of the people of Assam. It has been observed that there have been huge influx of illegal migrants throughout the time and the same is yet to be determined. Therefore, it is seen that the government’s decision to carry out the process of delimitation in the current manner could lead to serious consequences.
2.3. Will there be any change in the number of seats in Assam?
The process of delimitation will change the boundaries of the assembly seats in Assam. Since there is a freeze on the number of assembly or parliamentary seats, therefore, there will be no change in the total number of seats. However, the allotted seats may be readjusted and Upper Assam may have relatively more seats in comparison to Lower Assam though the total number of seats will remain the same. Considering the paucity of time for the Delimitation Commission to wind up the delimitation process before the 2021 Assembly Elections, the Election Commission of India may fix the boundaries for the assembly seats which will be ratified by the Delimitation Commission later.
The BJP-led government in the state is claiming that the process of delimitation would be carried out in the interest of the indigenous people and to ensure “a majority of 110 seats out of 126 for the indigenous population”.[i] The government stated that the process of delimitation should be carried out with the sole objective of protecting the “political rights of the native people of Assam”. Since India will go through the process of delimitation in 2026 after the 2021 census is completed, the question posed here pertaining to delimitation is whether Assam will go through the process of delimitation again in 2026, and if yes, why is the government carrying out the process now? What intention does it tend to portray when it comes to indigenous protection of the rights of the people of Assam? The answer is yet to be ascertained.
2.4. Political and Sociological Impacts:
In Assam, the issue is of the influx of illegal migrants which posed a serious security concern. The influx of illegal migrants has caused major demographic changes in several districts of Assam. If the delimitation is carried out without ascertaining its citizens, the impact would be devastating. The people of Assam may not get a fair representation in the Assembly or in the Parliament. Assam has already gone through a violent movement in 1985 for the protection of their land and culture. The Assam Accord in 1985 was the result of the Assam Agitation. Clause 6 of the Assam Accord calls for constitutional, legislative and administrative safeguards to protect, preserve, and promote the cultural, social, linguistic identity and heritage of the Assamese people.[ii] Owing to the violent protest against CAA, the Home Ministry appointed a high powered committee in February 2019 to push for the implementation of Clause 6 of Assam Accord. The report has been submitted by the committee to the Chief Minister of Assam and the recommendations are yet to be implemented.[iii] The recommendations are made to protect and preserve the social and cultural identity of the people of Assam. Therefore, without ascertaining the indigenous population and without ensuring the mandated protection of the Assamese community, the process of delimitation will jeopardize the political and social rights of the people.
2.5. The Illegality of the Current Delimitation
The notification issued by the Ministry of Law and Justice on March 6 thereby constituting a Delimitation Commission for the purpose of rearranging boundaries in the four north-eastern states is contrary to the provisions of the Representation of People’s Act (Hereinafter referred to as RP Act), 1950. In 2008, when the Delimitation Process was deferred by issuing Presidential Orders, it was decided that the exercise would be further carried out by the Election Commission instead of constituting a new Delimitation Commission and for this very purpose, the RP Act 1950 was amended and section 8A was inserted. The provision clearly specifies that the Election Commission shall determine the parliamentary and assembly constituencies in the state of Assam, Arunachal Pradesh, Manipur, and Nagaland. Therefore, the constitution of a distinct commission for the same purpose is contrary to the provision of the RP Act, 1950, and hence illegal.
Further, relying on a 20 year old date to carry out the process of delimitation is itself against the principle of equal representation as it would exclude recent changes in the population and would be prejudicial to the rights of the citizens. The right to vote is a constitutional right granted to the citizens of India under Article 326 of the Constitution and without ascertaining the legal citizenry of the state (which would be ascertained only when the NRC would be completed), the process of delimitation would be prejudicial to the political rights of the people of Assam.
Though the right to vote is a constitutional right, the Supreme Court in PUCL v Union of India had made some substantial observations. The Supreme Court held that “although the right to vote is a constitutional right under Article 326, the freedom of voting would fall under the ambit of Article 19(1) (a) of the Constitution.” Therefore, it is a person’s fundamental right to have the freedom of voting in an election.[iv] Therefore, carrying out the process of delimitation on stale figures of 2001 census without considering the changes in population would deprive many citizens from exercising their freedom of voting. Barring even one citizen from exercising its voting rights would be a violation of Article 19.
Further, Article 14 prohibits any form of discrimination and unequal treatment of persons. The underlying principle is that all the persons shall be treated equally in terms of privilege conferred and duty imposed by the laws. The Supreme Court in Budhan Choudhary v State of Bihar (1955) observed that Article 14 prohibits discrimination not only by a substantive law but also by a law of procedure. The current process of delimitation (a procedure to be carried out under the relevant law) based on the stale figures of 2001 by excluding a substantial portion of citizens would be discriminatory as it would fail to ensure equality of votes and thus violates Article 14 of the Constitution.
Also, Article 21 stipulates that no one shall be deprived of their life and personal liberty except procedure established by law given the fact that the procedure must be just, fair and reasonable and not arbitrary.[v] Article 14 and Article 19 are the basic rights which are fundamental in ensuring the dignity of a person. Deprivation of these rights would ultimately violate Article 21 of the Constitution. The Supreme Court in Olga Tellis v. Bombay Municipal Corporation and Ors., held that “just as mala-fide act has no existence in the eyes of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right must conform to the norms of justice and fair play. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it.”[vi]Therefore, the procedure adopted by the government in carrying out the process of delimitation is unjust, arbitrary and unreasonable as it has not considered the latest census figure mandated by Article 82 and Article 170 of the Constitution and has abruptly proceeded without further considering the ill impacts of it on the citizens.
Further, Article 82 and Article 170 of the Constitution provides that the process of readjusting boundaries is to be carried out after each census or upon the completion of each census. Since, the current process of delimitation is to be carried out on the basis of 2001 census when the 2021 census is under way is itself against the established principles of Article 82 and 170 of the Constitution. Also, the Constitution 84th Amendment Act 2002 was brought about to freeze the process of delimitation until 2026.[vii]This means no delimitation of constituencies can be carried out till 2026. However, if one reads the 2020 presidential order, it mentions that “the delimitation exercise could be carried out now”. This is in complete contrast to the 84th Amendment.
Therefore, the manner in which the current process of delimitation is going to commence is against the letter and spirit of the Constitution and hence unconstitutional. The government must relook its decision and make necessary changes to be in conformity with the provisions of the Constitution.
[i]Id.
[ii] Assam Accord 1985, Clause 6.
[iii] Bharti Jain, High Level Committee set up to implement Clause 6 of Assam Accord, TIMES OF INDIA, https://timesofindia.indiatimes.com/india/high-level-committee-set-up-to-implement-clause-6-of-assam-accord/articleshow/67405248.cms (Last visited 29th August 2020).
[iv] Jyotishka Guha, Prisoner’s Right to Vote in India, Indian Constitutional Law and Philosophy, https://indconlawphil.wordpress.com/tag/right-to-vote/.
[v] Indian Const., Art. 21.
[vi] Vidhan Maheshwari, Article 21 of the Constitution of India-The Expanding Horizons, LEGAL SERVICES INDIA, http://www.legalserviceindia.com/articles/art222.htm. (Last visited10th August 2020).
[vii] 84th Constitutional (Amendment) Act, 2002, Statement of Objects and Reasons.
Leave a Reply