While observing that the petition merited serious consideration by the court, the Bench agreed to examine the constitutional validity of Section 8A of the Representation of the People Act, 1950 empowering the Election Commission of India to undertake the delimitation of constituencies.
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ON Monday, the Supreme Court refused to grant a stay on the ongoing delimitation process in Assam.
The Bench, comprising Chief Justice of India (CJI) D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Mishra directed the Union government and the Assam government to file their replies within three weeks
The Bench was hearing a petition filed by ten petitioners belonging to various opposition parties in Assam, who have challenged the methodology adopted by the Election Commission of India (ECI) for the proposed exercise.
The Bench was of the view that when delimitation commenced, having due regard to the issuance of the draft proposal in June 2023, it would not be proper to interdict the process at this stage.
While observing that the petition merited serious consideration by the court, the Bench agreed to examine the constitutional validity of Section 8A of the Representation of the People Act, 1950 empowering the ECI to undertake the delimitation of constituencies.
Brief history of delimitation in India
In 2008, when the delimitation exercise was deferred in Assam and three other Northeastern states, the Parliament had inserted Section 8A into the Act.
Clause 1 of Section 8A provides that: “If the President is satisfied that the situation and the conditions prevailing in Arunachal Pradesh, Assam, Manipur or Nagaland are conducive for the conduct of delimitation exercise, he may, by Order, rescind the deferment Order issued under the provisions of Section 10A of the Delimitation Act, 2002 in relation to that state, and provide for the conduct of delimitation exercise in the state by the ECI.”
On February 28, 2020, the President issued a notification to rescind the Order issued in 2008 by means of which the exercise of delimiting the constituencies in Assam, as per the Delimitation Act, 2002, was deferred.
On March 6, 2020, the Union Ministry of Law and Justice issued a notification constituting a delimitation commission for the purpose of delimiting assembly and Parliamentary constituencies in Assam, Arunachal Pradesh, Jammu & Kashmir, Manipur and Nagaland.
However, on March 3, 2021, the law ministry issued yet another notification removing the references to Assam, Arunachal Pradesh, Manipur and Nagaland in the earlier notification of March 6.
On December 12, 2022, a press release was issued by the ECI, which stated: “In pursuance to the request received from Ministry of Law and Justice, Government of India, the ECI has decided to initiate the delimitation exercise of assembly and parliamentary constituencies in Assam as per Section 8A of the Representation of the People Act, 1950.”
This press release further stated that “the ECI has been requested by the Ministry of Law and Justice to conduct delimitation of parliamentary and assembly constituencies in Assam.”
Hearing of July 24
During today’s hearing, senior advocate Kapil Sibal, for the petitioners, argued that the delimitation exercise in Assam ought to be carried out as per the provisions of the Delimitation Act, 2002.
The Act provides for the constitution of a delimitation commission headed by a former Supreme Court judge and composed of members of legislative assembly or members of the Parliament, as the case may be.
Sibal submitted that the process initiated by the ECI is a non-representative process and it is dehors the underlying basic feature of the Constitution of India.
Sibal also contended that the proposed elimination seeks to redraw the constituencies on the basis of “population density”, which is contrary to the constitutional provisions as per which delimitation has to be conducted on the basis of population.
Solicitor General Tushar Mehta argued that the process initiated by the ECI was strictly in accordance with Section 8A of the 1950 Act.
Mehta also stated that it is for the first time ever that Section 8A had been challenged.
Background of the petition
The petition contends that “population density or populous-ness has no role to play in the process of delimitation”, yet the ECI has adopted a methodology of “taking different average assembly sizes for different districts” for the delimitation process.
The petition states that the Constitution of India envisages an exercise whereby constituencies are to be readjusted so as to ensure that all constituencies are composed of an almost equal population.
It contends that the ECI, by relying on 2001 census figures, has created three categories of districts and has adopted different yardsticks for them, in a possible deviation of up to 33 percent between the population of the largest and the smallest constituency.
The petitioners contend that the delimitation for the rest of the country has been conducted by a high-powered body, headed by a retired Supreme Court judge, and a commission for Jammu and Kashmir was formed on similar lines.
However, the provision of Section 8A discriminates against Assam and three other Northeastern states for which the ECI has been prescribed as the authority to conduct delimitation.
For this reason, the petition calls this provision “arbitrary”, “opaque” and “discriminatory towards Assam”.
The petition has also highlighted certain statements of the chief minister of Assam, who has publicly stated that the present exercise will be beneficial to one party, i.e., the Bharatiya Janata Party (BJP) (to which he belongs) while being damaging to opposition parties.
Such statements, the petition submits, while not inspiring any confidence in the exercise, also give rise to apprehensions that the ECI exercise will not be independent and will be heavily dictated by the ruling regime.
The petition has been filed through advocate-on-record Fuzail Ahmad Ayyubi.
