The Election Commission’s (EC) former legal eagle, SK Mendiratta, has red-flagged the Union government’s order setting up a Delimitation Commission for Arunachal Pradesh, Manipur, Assam and Nagaland, calling it “unconstitutional” and “illegal”.
When delimitation last took place in the rest of the country in 2002-08, these states had been left out.
What is delimitation and why is it needed?
Delimitation is the act of redrawing boundaries of Lok Sabha and Assembly seats to represent changes in population. In this process, the number of seats allocated to a state may also change. The objective is to provide equal representation for equal population segments, and a fair division of geographical areas, so that no political party has an advantage. The Delimitation Commission’s orders cannot be questioned before any court.
In the last delimitation exercise, completed in 2008, Arunachal, Manipur, Assam, Nagaland were kept out due to apprehensions over use of the 2001 Census. The Centre’s move to club the four with J&K comes in the backdrop of unrest in the region over CAA.
How often has delimitation been done?
Delimitation is done on the basis of the preceding Census. The first such exercise in 1950-51 was carried out by the President, with the help of the Election Commission. Following the Delimitation Commission Act in 1952, all such exercises have been conducted by Delimitation Commissions — set up in 1952, 1963, 1973 and 2002.
There was no delimitation after the 1981 and 1991 Censuses. This was a fallout of the provision that the ratio between the number of Lok Sabha seats in a state and the population of the state is, as far as practicable, the same for all states. Although unintended, this meant that states that took little interest in population control could end up with more seats in Parliament, while the southern states that promoted family planning could end up with fewer seats. Amid these concerns, the Constitution was amended in 1976 to suspend delimitation until 2001.
Another amendment extended the freeze on the number of seats until 2026, by when the country was projected to achieve a uniform population growth rate. So, the last delimitation exercise between July 2002 and March 31, 2008, based on the 2001 Census, only readjusted boundaries of existing Lok Sabha and Assembly seats and reworked the number of reserved seats.
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Why were these four states left out in 2002-08?
In Arunachal Pradesh, Assam, Manipur and Nagaland, various organisations had moved the Gauhati High Court against the 2002-08 exercise, challenging the use of the 2001 Census for reference. From Assam, an all-party delegation met then Home Minister Shivraj Patil pleading that delimitation be called off because the National Register of Citizens (NRC) was yet to be updated. The Delimitation Act was amended in 2008, and on February 8, 2008, Presidential orders were issued to defer delimitation in these four states.
So, when and why did the government decide to resume delimitation for Arunachal Pradesh, Assam, Manipur and Nagaland?
On February 28 this year, President Ram Nath Kovind cleared the decks for the resumption of the delimitation exercise in the four states by cancelling the order of February 8, 2008.
The fresh order issued by the Legislative Department of the Law Ministry said “it appears that the circumstances that led to the deferring of the delimitation exercise” in Assam, Manipur, Arunachal Pradesh and Nagaland “have ceased to exist and that the delimitation of the constituencies as envisaged under the Delimitation Act, 2002 could be carried out now”. It noted that there had been a reduction in insurgency incidents, making the situation conducive for carrying out delimitation.
Subsequently, on March 6, the Law Ministry notified the Delimitation Commission for the four northeast states and Jammu and Kashmir, which was also left out in 2002-08. Former Supreme Court judge Justice Ranjana Prakash Desai is its chairperson, and Election Commissioner Sushil Chandra is the EC’s representative on the panel.
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Will delimitation change the number of seats in these states?
Not in the four Northeast states. There is a freeze until 2026 on the number of Lok Sabha and Assembly seats in any state. Delimitation will only redraw the boundaries of seats in each state, and can rework the number of reserved seats for SCs and STs. However, because of exceptional past circumstances, Jammu & Kashmir’s Assembly seats will now increase from 107 to 114, which is expected to increase Jammu region’s representation.
Why has EC’s former legal advisor called the new Delimitation Commission “illegal” and “unconstitutional”?
According to SK Mendiratta, the Law Ministry’s notification of March 6 violates the Representation of the People Act 1950.
In 2008, after the President deferred delimitation in Arunachal Pradesh, Assam, Manipur and Nagaland, the Parliament decided that instead of creating another Delimitation Commission in future for the limited purpose of redrawing seat boundaries in the four northeastern states, the exercise there would be carried out by the EC. The Representation of the People Act 1950 was amended, and Section 8A was introduced for this purpose.
The Parliament was guided by the fact that there is precedence of the EC being vested with the authority to redraw boundaries of constituencies – including when Delhi was delimited into 70 seats in 1991-92, and Uttarakhand into 70 seats in 2000.
Mendiratta wrote a letter to the three election commissioners on June 4 pointing out the contradiction between the Law Ministry’s notification of March 6 and Section 8A of the RP Act 1950. Since the RP Act 1950 clearly states that delimitation in the four northeastern states, when held, would fall within the EC’s remit, the Centre should not have notified a separate Delimitation Commission for this purpose, Mendiratta wrote in his letter. Hence, any delimitation exercise in Arunachal, Manipur, Assam and Nagaland by the new Delimitation Commission would be “declared void by the courts” and, subsequently, result in “wastage of huge precious public funds”, he told the three election commissioners.
Who is SK Mendiratta and why does his opinion matter in this case?
Mendiratta was EC’s legal advisor for over 50 years. He left the poll panel in 2018. He is considered an expert on delimitation and had been an adviser with the 2002 Delimitation Commission, set up under Justice Kuldip Singh. Mendiratta had also assisted the EC in delimiting Uttarakhand into 70 constituencies under the UP Reorganisation Act, 2000. His voice is important, and carries a lot of weight.
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