Supreme Court Refuses To Stay Assam Delimitation Process; Agrees To Hear Challenge To Constitutionality Of Section 8A Of RPA

While refusing to stay the ongoing process of delimitation of the assembly and Lok Sabha constituencies being undertaken by the Election Commission of India, the Supreme Court on Monday agreed to hear a challenge made to it by a group of non-BJP party leaders.

A bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra agreed to hear a challenge to Section 8A of the Representation of Peoples Act and issued notice on the writ petitions filed by the opposition party leaders. The petitioners also challenge the draft proposal published by the Election Commission of India (ECI) in June for the delimitation of Assam's 126 assembly constituencies and 14 Lok Sabha constituencies.  Three weeks time has been given to the Union of India and the ECI to file their replies and two weeks thereafter for rejoinder.

The petitioners in the matter comprised members of ten opposition parties, including the Indian National Congress, Raijor Dal, Assam Jatiya Parishad, Communist Party of India (Marxist), Communist Party of India, Trinamool Congress, Nationalist Congress Party, Rashtriya Janata Dal, and Anchalik Gana Morcha.

Courtroom Exchange

The arguments before the bench were backdropped against two provisions. First, Section 10A of the Delimitation Act, 2002 as per which the President can defer the delimitation exercise in a State if there is a situation which threatens national integrity or public order.  Second, Section 8A of the Representation of the People Act, as per which the delimitation exercise with respect to the States of Arunachal Pradesh, Assam, Manipur or Nagaland is to be carried out by the Election Commission of India, if the President rescinds the deferment order issued as per Section 10A of the Delimitation Act. Notably, both these provisions were introduced in the year 2008.

Senior Advocate Kapil Sibal, appearing for the petitioners, stating that ordinarily, the exercise was to be carried out by a Delimitation Commission which consists of a retired Supreme Court judge and representatives of people, he argued that allowing the process to be carried out by the ECI was arbitrary.

He further contended that the process was not representative. "This is a non representative process and it is de hors the underlying basic feature of the constitution and the heart of democracy". As regards other states, the process was undertaken by the Delimitation Commission; however, for north-eastern states, a different procedure is adopted as per Section 8A, which is arbitrary and discriminatory. To illustrate, he pointed out that for the UT of J&K, delimitation was under a commission headed by former Supreme Court judge Justice RP Desai; however, for Assam, it is being done by the ECI. 

Sibal also challenged the draft delimitation notice, saying that constituencies are sought to be redrawn on the basis of "population density". However, the Constitutional mandate is that the delimitation should be on the basis of population.

Per contra, Solicitor General Tushar Mehta argued that the process carried out by the ECI was in consonance with Section 8A of the RPA. He stated that till  Section 8A was struck down, it had to be considered as a good law and that the provision was inserted in 2008 and it is being challenged after 15 years.

In his submissions, Sibal also challenged the constitutional validity of Section 8A of the RPA. He said–

"If 8A were a prescription to allow the government de hors representation of people, then 8A is something to be challenged. This, according to me, is a non representative process, a process de hors the principles of constitution."

But CJI Chandrachud said, "We cannot stay a statutory provision, which came in force 15 years ago".

The bench agreed to issue notice on the petition and dictated the following order : 

"The constitutional challenge before this court merits scrutiny. Issue notice. Let reply be filed in 3 weeks and let the rejoinder be filed in 2 weeks thereafter."

However, the court refused to stay the ongoing delimitation process in Assam. It held–

"The process of delimitation has commenced following the rescinding of the deferment. Section 8A makes a special provision for the 4 north eastern states and in case of these 4 states, upon rescinding of the deferment order, the delimitation exercise is to be carried out by the Election Commission. At this stage when delimitation has commenced, having due regard to the issuance of the draft proposal of June 2023, it would not be proper to interdict the process. Hence while reserving the constitutional challenge, we are not issuing any orders restraining Election Commission to take any further steps".

Sibal however urged the bench to hear the matter as early as possible saying that once the notification is finalised, it cannot be further challenged in Court. The bench agreed to list the matter after the Delhi Ordinance case is over.

About the Petition 

The petition, filed through Advocate Fuzail Ahmad Ayyubi, specifically assailed the methodology adopted by the Election Commission to carry out the ongoing delimitation exercise in the State of Assam and its draft proposal to differently demarcate the boundaries of the constituencies. The methodology of taking different average assembly sizes for different districts had been called into question, with the petitioners arguing that the population density or populousness had no role to play in the process of delimitation. The petitioners had further contended that while the Constitution of India envisaged an exercise to readjust constituencies to ensure that they were all composed of an almost equal population, by relying on 2001 Census figures, the ECI has created three categories of districts and has taken a different yardstick for the three categories allegedly resulting in a possible deviation of up to 33 percent between the populations of the largest and the smallest constituencies.

Besides this, the petitioners challenged the constitutionality of Section 8A of the Representation of People Act, 1950, which forms the statutory foundation of the exercise of this power by the Election Commission, on the ground that it is arbitrary and opaque. Not only this, but it has also been alleged that the aforesaid provision is discriminatory towards the State of Assam since the process of delimitation for the rest of the country - such as the Union Territory of Jammu and Kashmir - has been conducted by a high-powered body headed by a retired Supreme Court judge. However, the Election Commission has been prescribed as the authority to conduct delimitation with respect to Assam and three other northeastern states.

Background

In December of last year, the Election Commission began the delimitation of assembly and parliamentary constituencies in Assam by using 2001 Census figures, as per Section 8A of the Representation of the People Act, 1950. This move to redraw the legislative seats in the state was initiated following a request from the union law ministry submitted in November. During this process, no new administrative units in the state may be created till this exercise is complete, as per a ban put in place by the commission. The last time these seats were readjusted was nearly five decades ago, in 1976, on the basis of 1971 Census data.

Although this draft proposal, released by the commission on June 20, has not sought to change the total number of constituencies, their boundaries have been redrawn in light of the changes in demography as reflected in the 2001 Census data. This will reportedly lead to 30 existing assembly constituencies ceasing to exist and 26 new ones being created.

Case Title : Hirendranath Gohain vs Union of India and others W.P.(C) No. 51/2023, Ajit Kumar Bhuyan vs Union of India and others W.P.(C) No. 64/2023, Assam Jatiya Parishad vs Union of India W.P.(C) No. 717/2023 and Lurinjyoti Gogoi and others vs Union of India W.P.(C) No. 738/2023

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